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Conceptions and
Misconceptions of
Legislation

A. Daniel Oliver-Lalana Editor

Contents

Preface. Conceptions and Misconceptions of Legislation

A. Daniel Oliver-Lalana v

Part I. Ways and Models of Legislation

1 Language and Rule of Law in Classical Athens

Virgilio Zapatero 1
2 Misconceptions in Legislative Quality: An Enlightened Approach to the Drafting
of Legislation
Helen Xanthaki 19
3 Rationality in Criminal Lawmaking. Rational Decision Making in a Complex
Socio-Legislative process
José Luis Díez-Ripollés 43
4 Legislation, Communication, and Authority. How to Account for the Bindingness
of Law?
Bart van Klink 67
5 Legislation and Nudging. Towards a Suitable Definition
Silvia Zorzetto and Francesco Ferraro 89

Part II. Legislation in a Culture of Justification

6 Legislation as Balancing
Jan-R. Sieckmann 111
7 Proportionality in Lawmaking: An Attempt of Justification in the Light of both a
Constitutionalist and an Argumentative Conception of Law
Gema Marcilla 129
8 Legislation and Argumentation: Towards a Model for the Analysis of Legislative
Reasoning
Manuel Atienza 147
9 Legislative Deliberation and Judicial Review: between Respect and Disrespect
for Elected Lawmakers
A. Daniel Oliver-Lalana 175
10 Special Interest Legislation and Legislative Capture
Klaus Meßerschmidt 205

Part III. Legislation, Lawyers, and Citizens

11 The Global Revival of Legisprudence: A Comparative View on Legislation in

Legal Education and Research
Ittai Bar-Siman-Tov 233
12 In the Law We Trust. Some Thoughts on the ‘Legislative Gap’ in Legal Studies
Wim Voermans 251
13 Taking Modern Legislation Seriously: Agency Rights as a Special Challenge
Pierre Guibentif 263

Index 285
About the Authors 289
Preface

Although the study of legislation and the making of law(s) is an inherently interdisciplinary
endeavor, we jurists seem best positioned to take the lead in it. 1 After all, laws are our daily
bread either as academics or practitioners, and no other expert group in society deals with them
as intensively and seriously as we do. One would therefore expect legislation to be a central
topic within the province of jurisprudence. For the past two centuries, however, our province
has largely been confined to the tasks of describing, interpreting, systematizing and applying
laws; whereas their elaboration remains, so to say, a blind spot—with the ideologies of legalism
and formalism playing a crucial part in this neglect. 2 Commonly, today’s law students still
learn to treat legislation as a given, and are even led to believe that before its enactment there
is only sheer politics, as if lawmaking mysteriously fell beyond the domain of law.
Of course, this situation has always been challenged by dissonant voices calling for more
room for legislation theory and practice in legal education and research; 3 and, fortunately, those
voices have noticeably grown in number and strength in recent years. 4 But mainstream
jurisprudence nevertheless preserves an artificial divide between the study of law and the study
of its making, thus overlooking the many ways in which the latter can contribute to being a
good lawyer. While not altogether absent from law faculties and schools, legislative thinking
and skills have only limitedly been incorporated into standard curricula (typically through
preliminary or elective courses on drafting or legistics), and are often perceived as “intruders”
into legal training—as some complained about decades ago (Horack 1937: 56). For its part, the
jurisprudence of legislation, to borrow Waldron’s (1999) phrase, has continued to struggle for
its rightful place within an adjudication-oriented legal science which shows little interest in

1
On the interdisciplinary nature of legislation theory, see especially Richli (2000).
2
These contentions do not square well with common law legal traditions. Still, also in countries like the
USA, lawyers have historically “yielded to political scientists, economists, sociologists (…) most study
of the public policy embodied in legislation” and “of legislative decision making processes”, and this
“area of neglect” has long been denounced as “the prime scandal of legal research” (Hurst 1965: 5–6
and 4); cf. also Seidman and Seidman (1995: 4 ff.).
3
Thus Freund (1907: 79; 1917: 310 ff.), Cohen (1947: 1301 ff.; 1950: 897; 1956: 387; 1983: 1163 ff.),
or Noll (1973: 9 ff.), to name but three prominent examples. As to the early academic concern for
developing a legislative jurisprudence in the German context, see Emmenegger (2006).
4
See e.g. Karpen and Xanthaki (2017); Steinbach (2017); Nourse (2016); Müller and Uhlmann (2013);
or West (2011), as well as Bar-Siman-Tov’s contribution to this volume (Chap. 11).
Preface vi

discerning the potential and limits of reasonableness in the making of laws (Wintgens 2012). 5
As a result, the multifaceted and increasingly rich landscape of current legisprudential
scholarship stays out of sight for most jurists. This book attempts to reflect at least a portion of
this wealth by bringing together an international group of lawyers, including renowned
legislative specialists, to elaborate on the theme “conceptions and misconceptions of
legislation”.
Two simple interwoven purposes underlie the project. First of all, we wanted to provide an
overview of approaches to lawmaking which are relevant to legal scholars, trying to combine
different theoretical accounts of legislation with a discussion of specific issues and challenges.
Instead of focusing on a particular understanding of lawmaking (or of lawmaking theory), we
rather pursue to gain insight into the diversity of legisprudence as a field of study. At the same
time we felt that the enduring hegemony of the “law-as-a-given” paradigm in the legal world
has paved the way for distorted images and questionable assumptions about legislation—for a
start, that jurisprudence has little to say about it, or that lawyers’ sole legislative concern should
be for the formal, textual or systematic features of laws. Therefore revising or at least pointing
out such misconceptions has been our secondary goal. Admittedly, the book contains just a
selection of perspectives and topics: it does not purport to entirely represent, far less exhaust,
the pool of juridical approaches to lawmaking, not even to parliamentary lawmaking—which
is our main, albeit not exclusive, interest. Still, the pieces collected here cover a broad spectrum
of legisprudential research and serve as an illustration of ongoing developments in the theory
of legislation.
The volume is organized into three parts. The first comprises a sample of ways and models
of legislation—ranging from the classic ideals of lawmaking to contemporary modes of
regulation (Chapters 1 to 5). All essays in this part, differences of focus notwithstanding,
revolve around the notions of legislative rationality, quality, effectiveness, and legitimacy,
which can be regarded as cornerstones of legisprudence (see Dorbeck-Jung 1995). Tightly
related to them is another central legisprudential topic: the justification of laws. We address
this in part two which explores the inevitable link between lawmaking, argumentation, and
constitutional democracy. Under the heading legislation in a culture of justification we discuss
aspects of this link that so far have been insufficiently considered in regular legisprudential
literature, such as the complexity of reasoning and balancing in legislative contexts, and the
justification problems posed by special interest legislation (Chapters 6 to 10). 6 The—as yet—
underprivileged status of legisprudence in legal studies, and the need for socially attentive and
citizen-oriented legislative research come to the fore in the last part of the book, which turns
to the relationship between legisprudence, lawyers, and citizens (Chapters 11 to 13). A brief
glance at the contents of the individual chapters will further display common threads in the
collection.

5
Radical skepticism about legislation seems to be a constant in juridical attitudes over time—at the start
of the last century, for example, Pound (1908: 405–406) urged lawyers to be “more cautious in criticizing
the legislature”, noting that “crudity and carelessness have too often characterized (…) lawmaking both
legislative and judicial” and “do not inhere necessarily in the one any more than in the other”.
6
Roughly, in “a democratic culture of justification” legislators must offer both “political justifications
to the electorate for their laws” and “legal justifications in terms of the values set out” in the constitution;
this means more than justifying “why one policy is better than another since it is also a justification of
why the policy is consistent with the legally protected rights of those it affects”, being addressed not
only to citizens but also to the courts” (Dyzenhaus 2015: 425–26, commenting on Mureinik’s original
reading of this concept). See Chap. 4 (Sect. 4.5) and Chap. 9 (Sect. 9.3) in this volume.
Preface vii

In the opening piece, Virgilio Zapatero delves into the historical roots of legisprudence in
order to introduce the Athenian model of good legislation (eunomia). This seminal conception
not only inspired legislative science during the Enlightenment but also shares many traits with
the way we think of good lawmaking today, including baseline requirements such as linguistic
clarity, generality or consistency of laws—and even a distinctive system of judicial oversight
(Chap. 1). Circumstances have changed much, though, and the ancient aspiration to good
legislation has acquired new accents. This can be illustrated by the current debates on
legislative quality, an elusive idea which Helen Xanthaki critically examines in her
contribution. Developing further her phronetic theory of legislation as a collective practice
guided by practical reason, she takes issue with some striking misconceptions about legislative
quality, and redefines it in terms of effectiveness or success, i.e. the capacity of laws to
accomplish intended policy goals (Chap. 2). José Luis Díez-Ripollés also deals with the quality
of laws, this time within the broader framework of a theory of legislative rationality. With a
focus on criminal legislation he delineates a multi-level scheme of rational and evidence-based
lawmaking; suggests how this scheme can be utilized to assess both legislative decisions and
processes; underlines its ethical and democratic implications; and connects it with the
constitutional control of criminal laws—pinpointing the shortcomings of proportionality-based
judicial review standards in criminal matters (Chap. 3). Quality and rationality may be said to
operate as legitimation devices underpinning the claim of legislation to bindingness, and it is
precisely this claim to bindingness that Bart van Klink puts at the heart of his discussion of the
two main families of conceptions of legislation, the instrumental and the communicative. After
stressing their differential features and their interdependencies, he shows that both conceptions
neglect the role of ideology in establishing the authority of law—which leaves them exposed
to misuse—, and reminds us that legislation theory is not neutral but a politically-laden
academic enterprise (Chap. 4). If there is a mode of lawmaking which is currently raising
legitimacy concerns it is nudging, viz. architectural or behavioural legislation—which has been
claimed to foster policy effectiveness while respecting individual freedom. To round off part
one of the book Francesco Ferraro and Silvia Zorzetto carefully review this expanding
regulatory approach. Drawing upon productive analytical distinctions to better understand the
different readings of nudging they set out to elicit and dissect its problematic assumptions in
view of real experiences, and to provide an adequate, “minimal” definition of this phenomenon
(Chap. 5).
In healthy constitutional systems, (elected) legislators are expected to give arguments in
public for the laws they pass. Otherwise, citizens can hardly ascertain their reasonableness, and
the same applies to courts where legislation is judicially reviewed. Such an expectation is a
hallmark of a democratic culture of justification. Throughout the second part of the collection
we lay emphasis on the rising—and characteristically legisprudential—demand for legislative
reasons, moving towards what might be termed a “justificationist” conception of the making
of laws. 7 Three major questions are tackled in this connection: legislative balancing, legislative
deliberation, and legislative capture. Jan Sieckmann takes up the first. In his view, standard
approaches to balancing, tailored to judicial hard cases, cannot fully account for the complexity
of balancing at the legislative stage. Therefore a pending task for legal argumentation theory is

7
Such a conception shares common ground with approaches to constitutional construction which focus
on the role and responsibility of parliaments—and their members—as interpreters of basic rights (cf.
Fisher and Devins 2010; Devins and Fisher 2015; see also Tushnet 2014: 44 ff.), as well as with the idea
of legislative rights review, i.e. that “rights should be a core consideration when assessing the merits of
legislative objectives and how best to achieve these in the process of developing legislation, as well as
during parliamentary scrutiny when deciding if amendments are warranted” (Hiebert 2012: 88).
Preface viii

to develop a lawmaking-specific reconstruction of balancing as a method to settle and justify

priority amongst conflicting legislative arguments according to their weight (Chap. 6). Gema
Marcilla, too, underscores the different stance of lawmakers and courts with respect to
balancing; but she also highlights their commonalities, looking at how the legal doctrine of
proportionality could be rethought as a legisprudential standard in order to improve the
lawmaking process. And this, in her mind, should entail abandoning certain misconceptions
about legislation and its study (Chap. 7). In his chapter, Manuel Atienza takes another step in
his outstanding effort to build a comprehensive argumentation theory of law that stretches to
norm production. Drawing on previous work on both lawmaking and legal reasoning he
proposes a model for the analysis of legislative deliberation, exemplifies it upon a selection of
debates held in the Spanish parliament, and demonstrates why too-idealized theories of
argumentation fail to cope with the practice of parliamentary reason-giving (Chap. 8). In
addition to its significance for a general theory of legal argumentation, legislative deliberation
may have a bearing on the control of statutes affecting basic rights by constitutional or
international courts—at least if these decide to inspect the process of statutory justification.
The role of the “argument from legislative deliberation” within the judicial review of statutes
and the difficulties entailed by the assessment of this deliberation are the topics of my own
contribution (Chap. 9). Along with due debate in parliament, a democratic culture of
justification calls for authenticity in legislation. 8 Simply put: it is legitimate lawmakers—not
merely pressure groups, lobbyists, external experts or private consultants—who should actually
take legislative decisions and should do so in pursuit of the general interest or public good. Yet,
as Klaus Meßerschmidt aptly notes, legisprudence has left this issue largely unattended to date.
In his essay on special interest legislation—which completes this second block and clears the
ground for part three—, he recalls the huge practical and political significance of this
phenomenon, and advocates an unbiased analysis of the input and output of legislation in terms
of concurring socioeconomic interests. Following this Meßerschmidt discusses whether the
overwhelming reality of legislative lobbying should lead to an intensification of the judicial
scrutiny of laws—suggesting that key constitutional principles like those of generality,
equality, coherence, or proportionality may well help to prevent legislative capture (Chap. 10).
The shared concern of the last group of papers is the position of legisprudence in legal
research and education, with an additional accent put on citizens’ access to legislation. To begin
Ittai Bar-Siman-Tov revises the development and current situation of legisprudence as a
scholarly domain—principally in the US context, but also with an eye on Europe and Israel—
, highlighting the factors that have fuelled its contemporary upswing. On this basis he turns to
the future prospects of legisprudence and stresses the need for strengthening comparative
perspectives and international dialogue on its progress (Chap. 11). The consolidation of a
border-crossing discipline is surely a big challenge. 9 Yet another important one is its
institutionalization at universities as well as the continuous training of lawmaking
professionals. 10 This is the topic of Wim Voermans’ chapter, in which he elaborates on the
infelicitous disregard of legislation within the teaching of law, tracing out the causes of our
court-centred and legislature-distrusting academic legal culture. Convincingly using the Dutch
experience as an example he argues that such a culture cannot come to grips with the drastic
changes the legal landscape is undergoing today. What these changes demand is, rather, a
reorientation of legal curricula towards more interdisciplinary knowledge, whereby much

8
On the principle of authenticity in legislation, see Reicherzer (2006).
9
Cf. e.g. Voermans and Eijlander (1999).
10
See recently Uhlmann and Höfler (2016) or de Almeida and Moll (2017), as well as the articles
included in vol. 65 no. 1 of the Journal of Legal Education (2015).
Preface ix

closer attention should be paid to the production of laws and to how these really impact on
society (Chap. 12). And when it comes to studying legislative impacts, one soon meets with
the problem of citizens’ access to legislation, which Pierre Guibentif tackles in the last essay.
While this problem has always puzzled interested lawmaking theorists—think for instance of
Bentham’s notoriety principle—, it is only in recent times that the divide between laypersons
and experts has become a legisprudential subject on its own.11 In this connection, Guibentif
concentrates on legislation granting rights and liberties to make a case for a socio-legal approach
to legisprudence that enhances the actual chances of citizens to access, to understand and to
utilize legislation, allowing for their position as ultimate addressees of the law (Chap. 13).
The title of the closing chapter—“taking legislation seriously”—could also have been that
of the whole volume as well, for it nicely conveys the spirit that unites all thirteen papers. The
manifold perspectives on lawmaking discussed throughout them does not alter the underlying
point: the theory of legislation matters, and matters principally to lawyers. While it would seem
on the face of it unnecessary to say this, a glance at the undergraduate and graduate programmes
of most law faculties highlights the fact that it is not. And this limited resonance in the regular
teaching of law is paralleled by a noticeable legislative abstinence in legal research, especially
in general jurisprudence which, on the whole, still remains somehow indifferent to the current,
multidirectional progress of the theory of legislation. We very much hope that this book may
contribute a little bit to amending this situation.

*****

The preparation of the present volume started in the winter term 2016/17 during a stay I did—
with the generous support of the Alexander von Humboldt Foundation—at the Institute for
Legal Philosophy of the University of Erlangen-Nuremberg, where I was magnificently hosted
by Jan Sieckmann and his team. Upon returning to my home university I have further benefited
from the Spanish Ministry of Economy’s Ramón y Cajal Research Fund and project DER2014-
55400-R. Preliminary versions of all papers were presented and discussed in a conference held
in Zaragoza on 22/24 February 2018. For having made this conference possible I should like
to thank the Legal Sociology Laboratory of the University of Zaragoza and its director Manuel
Calvo García; the 2017/2019 Research Group Strategy of the Government of Aragon; the Vice-
rectorate for Scientific Policy of the University of Zaragoza; the Zaragoza Faculty of Law and
its dean Javier López; the Manuel Giménez Abad Foundation for Parliamentary Studies,
particularly José Tudela and José Sánchez; and the publishing houses Springer and Tirant lo
Blanch. Those who attended the conference deserve a very special word of gratitude for their
inspiring participation—one could hardly imagine a better audience. That I am deeply indebted
to all contributing authors goes without saying: the book would have never seen daylight
without their bighearted engagement. Since the personal acknowledgements that are due make
too large a list to be named here, let me just finish by thanking Sergio Pérez González for his
kind collaboration in this and other projects, Anja Trautmann for her excellent work as law
editor at Springer, and Anthea Connolly for her linguistic advice, as well as the two anonymous
reviewers on the manuscript for valuable comments and suggestions.

Zaragoza, 29 June 2018

D.O-L.

11
Cf. further Chap. 2 (Sect. 2.5) in this volume.
Preface x

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de Almeida, M.T. and Ch. Moll. 2017. Legislative training. In Legislation in Europe, eds. U. Karpen
and H. Xanthaki, 257–274. Oxford: Hart (Bloomsbury).
Cohen, J. 1983. Legisprudence: problems and agenda. Hofstra Law Review 11(4):1163–1183.
Cohen, J. 1956. Good Man and the Role of Reason in Legislative Law. Cornell Law Review 41(3): 386–
398.
Cohen, J. 1950. Towards realism in legisprudence. Yale Law Journal 59(5): 886–897.
Cohen, J. 1947. On the teaching of “legislation”. Columbia Law Review 47(8): 1301–1312.
Devins, N.E. and L. Fisher. 2015. The democratic constitution. 2nd edn. New York: Oxford University
Press.
Dorbeck-Jung, B. 1995. Conceptualizing legisprudence. From legislation to responsive regulation. In
Annual Conference of the European Group of Public Administration, 1–13. Rotterdam: EGPA.
Dyzenhaus, D. 2015. What is ‘a democratic culture of justification’? In Parliaments and human rights,
eds. M. Hunt, H.J. Hooper and P. Yowell, 425–445. Oxford: Hart.
Emmenegger, S. 2006. Gesetzgebungskunst: gute Gesetzgebung als Gegenstand einer legislativen
Methodenbewegung in der Rechtswissenschaft um 1900. Tübingen: Mohr Siebeck.
Fisher, L. and N.E. Devins. 2010. Political dynamics of constitutional law. St. Paul (MN): West
Academic Press.
Freund, E. 1917. Standards of American legislation. An estimate of restrictive and constructive factors.
Chicago: The University of Chicago Press.
Freund, E. 1907. The problem of intelligent legislation. Proceedings of the American Political Science
Association 4: 69–79.
Hiebert, J.L. 2012. Parliamentary engagement with the Charter: rethinking the idea of legislative rights
review. Supreme Court Law Review 58: 87–107.
Horack, F.E. 1937. The common law of legislation. Iowa Law Review 23: 41–56.
Karpen, U. and H. Xanthaki. 2017. Legislation in Europe. A comprehensive guide for scholars and
practitioners. Oxford: Hart (Bloomsbory).
Müller, G. and F. Uhlmann. 2013. Elemente einer Rechtssetzungslehre, 3rd edn. Zürich: Schulthess.
Noll, P. 1973. Gesetzgebungslehre. Reinbeck bei Hamburg: Rohwolt.
Nourse, V. 2016. Misreading law, misreading democracy. Cambridge (MA): Harvard University Press.
Pound, R. 1908. Common law and legislation. Harvard Law Review 21(6): 383–407.
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Richli, P. 2000. Interdisziplinäre Daumenregeln für eine faire Rechtsetzung: ein Beitrag zur
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Lichtenhahn.
Seidman, A. and R.B. Seidman. 1995. The present state of legislative theory and a proposal for
remedying its sad condition. Boston: Boston University (OpenBU).
Steinbach, A. 2017. Rationale Gesetzgebung. Tübingen: Mohr Siebeck.
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Tushnet, M. 2014. Comparative constitutional law. Cheltenham: Edward Elgar.
Uhlmann, F. and S. Höfler. 2016. Professional legislative drafters. Status, roles, education. Zürich:
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Voermans, W.J.M. and Ph. Eijlander. 1999. Working out the fundamentals for a broder crossing post-
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Legistics), ed. A. Morand, 47–60. Aix-en-Provence: PUAM.
Waldron, J. 1999. Law and disagreement. Oxford: Oxford University Press.
West, R. 2011. Toward the Study of the Legislated Constitution. Ohio St. Law Journal 72: 1343–1366.
Wintgens, L. 2012. Legisprudence: practical reason in legislation. Aldershot: Ashgate.
 Part I

Ways and Models of Legislation

Chapter 1
Language and Rule of Law in Classical Athens

Virgilio Zapatero Gómez *

Abstract Concern about the quality of laws did not begin 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, to classical Athens. From 403 BC onwards, following the fall of the so-called Thirty Tyrants, a
great codification 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 was developed which would become the object of the science of
legislation many centuries later. Actually, it can be contended that this ideal already comprised the bulk
of the enlightened conception of legislation, with a focus on the prevalence of written over unwritten
laws; on the generality of laws, as well as the chief requirement of the publication 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 potentially arising from vague
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.
Keywords Legislation in Athens • Rule of Law • Legisprudence • Legal drafting • Formal legality

1.1 The Discovery of Written Law

In Ab Urbe Condita (History of Rome), Titus Livius (Livy) recalls how the demand for equality
(aequare leges omnibus) led to such an acrimonious atmosphere between disputing patricians
and plebeians, that an embassy was sent “with the order to copy the famous laws of Solon and
study the institutions of other Greek cities, their customs and laws”. 1 When this study trip
returned, the Roman Senate, emulating the nomothetai of Athens in 451 BC, appointed the
famous Decemviri, presided over by Appius Claudius, with full powers to implement the

V. Zapatero Gómez ()

Universidad de Alcalá de Henares, Facultad de Derecho
C/Libreros 27, E-28801 Alcalá de Henares (Spain)
e-mail: [email protected]*

1
Livy (2006: 3.31.8), “On the Decemvirs”.
1 Language and Rule of Law in Classical Athens 2

appropriate reforms needed. According to Livy, the commission proposed the first ten Leges
Tabularum to which a further two were added in 450 BC (known as the Iniquitous Tables
which prohibited mixed marriages and punished cohabitation) and which were approved by the
comitia centuriata, the ancient Roman military assembly. In its emulation of Athens, Rome
with its Twelve Tables adopted written laws, which would be approved by the people.
Irrespective of whether the embassy that Livy mentions was actually true, the story is a clear
illustration of Rome’s enduring admiration not only for Greek philosophy, but also for its laws.2
When that real or presumed embassy reached Athens in the 5th century BC (Hölkelskamp
1999: 343), the myth or ideological construction of great lawgivers had already taken shape.
Literary sources spoke of divine legislators such as Minos, who “every nine years confidant of
the Great Zeus” had laid down the laws of Crete, 3 or Apollo who handed down the laws for
Lacedaemon. 4 However, above all, this myth was taken up by a whole series of legislators who
from the 9th century were said to have laid down the laws of several cities: Lycurgus 5 in Sparta
(9th century BC), Zaleucus in Locres (7th century BC), Carondas in Catania (6th century BC),
Philaeus in Thebe, Píttacus (one of the seven sages of Greece in Mitilene (7th century BC),
Andromadas of Rhegium was lawmaker of Chalcis in Thrace, Demonax in Cirene 6 , and
Onomacritus, “the first expert in legislation” according to Aristotle 7, who handed down the
laws of Crete. It is said that they produced their laws in poetry or even in song, in the case of
Carondas (Camassa 1998). However, we do not know what the Roman embassy discovered at
that time from the laws of these mythical legislators (Szegedy-Maszak 1978: 199 ff.).
In any case, Athens, like many of the Greek poleis, could show any 5th century visitor, not
exactly a developed legal system but certainly a broad list of laws which, together with the
famous agraphoi nomoi, regulated a major part of public and private life. The history of written
law in Athens had begun with Draco’s laws promulgated in 621/620 BC (Lanni 2006: 315),
the partial text of which has come to us through a later transcription by Nicomachus and other
anagrapheis in 409/8 BC, and in particular with those of Solon who was appointed archon with
extensive powers in 594 BC, and who, with his reforms, became the great Athenian lawgiver8;
even as late as Artistotle’s time citizens swore to abide by the laws of Solon 9. To Draco’s laws
(thesmoi) and those of Solon (nomoi) other laws were added, deriving from Peisistratos’
reforms (560/56 and 526/508), and those of Clisthenes (508/7) which years later would be
followed by those deriving from Efialtes (462/1) and Pericles (451/0).
All this is what any curious traveller in mid-5th century BC could find in Athens, namely,
a myth of the great lawgivers, an assembly with legislative power and the ideal of the nomos
basileos, of the written law as an illustration of the identity of the idealised community that
was Athens. The idea of the law as a body of written laws was developed in Athens and was
clearly connected with the struggle against the oligarchs for democracy (Thomas 1996: 18 ff.).
“When the laws have been written down”—said Eurípides 10—, “both the weak and the rich

2
Also Dionysius of Halicarnassus (1975) tells us that Marcus Valerius (consul of Rome in 505 BC)
suggested, as a social peace formula, to follow the example of what the wise Solon had achieved in
Athens at the time of his elders, namely the cancelation of debts.
3
Homer (2000: XIX, 178 ff.).
4
Plato (2014: 632 b).
5
See Plutarch (1979: “Lycurgus”, 65) and Herodotus (1960: 1.65).
6
Herodotus (1960: 4.161).
7
Aristotle (1999: 1273b.12).
8
Plutarch (1979: “Solon”, XVIII).
9
Aristotle (1995: 7.1).
10
Euripides (1978: 401–408).
V. Zapatero Gómez 3

have equal justice and it is open to the weaker to use the same language to the prosperous when
he is reviled by him, and the weaker prevails over the stronger if he have justice on his side”.

1.2 Volatility and Inconsistency in the Written Laws

By mid-5th century BC, however, it was becoming clear that written laws, which should have
provided permanence, stability and security in terms of the criteria for resolving conflicts
(Thomas 1996: 49) were far from fulfilling their promise and had, in themselves, become an
element of insecurity. The Assembly approved decrees (psephismata) and laws (nomoi)
indiscriminately without clearly differentiating their nature and purpose. The written decrees
and laws took different forms, from recording on steles and walls to writing in axones, kyrbeis
or on papyri. Publication of the regulations was not assured or centralised; and in fact the texts
that were published were dispersed throughout the city and the territory of Attica. Many laws,
which had been approved over those two centuries, contradicted each other and failed to
determine which were applicable and where and when, and it reached a stage where respect for
antiquity ended by resorting to the principle lex anterior derogat posteriorem. That is, despite
the written laws, the citizen ultimately did not know if there was a law applicable to the case,
where to read it, how to resolve the contradictions, or which rules had fallen into disuse. These
circumstances led to consideration of the problem of quality of the written laws and the need
for a legislative techne.
In fact, in the second half of the 5th century BC it was felt there should be some kind of
“systematization” of laws or, at least, compilation of the written laws, which would resolve
some of the problems of insecurity, volatility and inconsistency. In order to bring Solon’s laws
up to date—the formula by which all democratic laws were referred to since the time of
Draco—Athens started an ambitious task of republishing and consolidating all legislation. This
task required: a) compilation of all the legal texts in use, irrespective of their location or format;
b) incorporating any alterations, additions or deletions required and made over the last two
centuries in Solonian legislation; c) repealing regulations that had fallen into disuse; d) aligning
contradictory texts; e) recording texts; and f) possibly, making a papyrus copy for the Metroon.
All these tasks required considerable professional skills (Volonaki 2001: 151). This project led
to commission of one of the great reforms implemented during the constitutional development
of Athens (Sealey 1987: 139), following the fall in 410 BC of the Four Hundred, with the
appointment of a group of anagrapheis—nomothetes, according to Thucydides 11 —led by
Nichomachus, who was one of the first experts in legislation, and whose name is known to
posterity thanks to the orator Lysias. 12
The second major reform implemented by the recovered democracy of 403 BC, which
would affect the quality of the laws, was the approval of the three capital laws, as related by
Andocides. 13 These laws laid down the exclusiveness of the written law, distinguished between
laws and decrees, and established the requirement that the law should be general and the pre-
eminence of laws over decrees:

- In no circumstances shall magistrates enforce a law which has not been inscribed.
- No decree, whether of the Council or Assembly, shall override a law.

11
Thucydides (2002: VIII 97).
12
Lysias (1992a).
13
Andocides (1991: 85–86).
1 Language and Rule of Law in Classical Athens 4

- No law shall be directed against an individual without applying to all citizens alike, unless
an Assembly of six thousand so resolve by secret ballot.

With the publication of the anagrapheis’ works, current laws had been established,
inscribed or written, as may be deduced from the Diocles Law). 14 With previous laws to which
Andocides referred, the nature and position of the laws and decrees was legislatively clarified.
Another of the great innovations of 4th century BC was the establishment of rules of change
for the legal system (Canevaro 2015), which was achieved by regulating how, when and who
could initiate the legislative procedure.
In contrast to the requirements of permanence and immutability of the primitive laws of the
aristocracy—with their claim of patros politeia—which had condemned Athens to the rule of
two tyrannies—that of the Four Hundred and that of the Thirty—, the recovered democracy
reaffirmed its rights to change the laws if the people so decided. However, the people accepted
that this legal change was subject to rules and procedures that implied, among other things, that
the Assembly would renounce its monopoly of legislative power, and this was centred on the
Nomothetes, chosen by lottery from among six thousand citizens who had sworn the heliastic
oath.
All these changes (i.e. codification that offered a rule of recognition, determination of the
nature of laws and decrees, and the rules of change with the new procedure of Nomothesis),
together with establishment of the first judicial review known in history (both the graphe
paranomon and graphe paranomon me epitedeion theinai) marked a watershed in the
constitutional and legislative history of Athens, which from 403 BC became a stable and
moderate democracy until it was disbanded by the Macedonian empire. It is a lengthy period
which provides the backdrop and context for our reflection on the canons by which, from 400
BC onwards, Athenian laws were required to abide.
Such canons can be deduced from a study of both the forensic and political speeches of the
great Attic orators, in which legal values on good laws clearly flourished. At times such values
regarding legislation were expressed in procedural norms; at other times there were canons, or
topoi (Viehweg 1964), assumed socially and debate on which was guided in the Council, the
Assembly or the Courts themselves. These canons would, in one way or another, though the
Enlightenment literature on the art of legislating or the science of legislation, survive many
subsequent centuries.

1.3 Logographs and Rhetors

In Athens, unlike in Rome, there was no class of jurists who had developed the science of law,
whose treaties we would now be able to study. We do, nonetheless, possess almost a hundred
speeches pronounced 15 both in the Assembly and the Courts, based on which we can infer some
of the requirements that should be taken into account by anyone who wished to set up
legislative process.
In accordance with the new Nomothesia, although the Assembly had lost the monopoly of
legislative power and had shared it with the Nomothetes chosen by lottery for each occasion,
any citizen (o bouloumenos) could take the legislative initiative, if they wished to exercise that

14
Demosthenes (2008a: XXIV, 42).
15
The canonic list (of Alexandrine origin) of orators comprised Antiphon, Andocides, Lysias, Isocrates,
Iseo, Demosthenes, Aeschines, Licurgus, Hiperides and Dinarchus.
V. Zapatero Gómez 5

right. The ideal of the isonomía, which, taken to its ultimate end, presupposed election by
lottery of the vast majority of the judiciary, could not legally deprive any citizen of this right.
Pericles in his Funeral Oration recorded for posterity a paean to isonomy, but he did not
describe the reality of Athens, rather he dreamed it; he embellished it. Athens was a democracy
of some 30.000 citizens, the vast majority of whom were common people, the idiotai. They
attended the Assembly, concurred with the Boulé or the Courts, and listened to the speeches of
political professionals, the rhetors or politeuomenoi 16 (i.e. those who made proposals, who
knew how to write and, especially, how to speak in public). It was these speakers who ran the
city; most citizens confined their actions to approving or disapproving their proposals (Mosse
1984: 193–200).
To make up for their lack of expertise when intervening in a court procedure or making a
proposal to the Assembly, the average citizen could approach one of the logographs—a very
new occupation, a kind of precursor of today’s lawyers—who proliferated in 4th century BC
Athens. Logographs were not members of a “profession” as we see it today (Wolff 2007: 113–
14), nor did they always have a good reputation; 17 however, they made a good living—
sometimes very good—by writing speeches for citizens or by teaching pupils. Basically, they
were specialists in rhetoric (what Aristotle called artistic proofs 18). But, if they wanted their
clients’ speeches to be successful in the Assembly or in the Courts, the logographs also needed
to know the legal system well (part of the non-artistic proofs).
If the logograph was busy writing speeches for others (Lavency 2007: 3), the rhetors were
writing their own speeches and pronouncing them themselves, whilst not ruling out the
possibility of sometimes acting, on the quiet and for money, as logographs. A good rhetor
needed an excellent command of oratory with his artistic and non-artistic proofs, but also he
had to have a long list of talents and competence, 19 such as knowing how to talk about income,
war and peace, defence of the land, imports and exports and, of course, he would have an
excellent specialised knowledge of legislation. The common citizens, perhaps with the help of
a logograph, and the rhetor were those who set up the legislative initiative.

1.4 Things that Rhetors and Logographs Needed to Consider

Notwithstanding the above, legislating in Athens was a risky business. Formalising a decree
(psephisma) or a law (nomoi) had to meet certain requirements which, if not fulfilled, could
lead to extremely severe sanctions, as will be seen. The ideal way to investigate such
requirements is to examine real speeches pronounced in genuine cases by orators, instead of
confining ourselves to the rhetoric of the sophists, Artistotle’s rethoric, or that of Anaximenes.
Aristotle’s advice on the use of laws (non-artistic proofs), for example, are not always
concerned with real practice in real proceedings (Carey 1996). Therefore, it is also necessary
to refer to the forensic speeches of 4th century BC in order to detect arguments about the quality
of laws; arguments that to a certain extent, recall the set of conditions that, according to Lon
Fuller, good laws should fulfil (Canevaro 2017: 211–236). As the purpose of such speeches
was to convince the ordinary citizens who composed the court (dikastai), the orator also had to

16
Thucydides (2002: III.36, Debate on Mytilene).
17
Demosthenes (2008a: XXIV, 67).
18
Aristotle (1999b: I.2.2. 1355 b 35).
19
Aristotle (1999b: I.1359 b 35).
1 Language and Rule of Law in Classical Athens 6

be particularly aware of the audience’s ideology, and therefore we may assume that the topoi
used were widely assumed by the juries.

1.4.1 Respect for the Rules of Procedure

Some requirements of draft laws were legally pre-established. In two of the possible channels
for initiating legislation (i.e. annual ratification of the laws or taking the initiative at any time
of year) any citizen could activate the legislative process. To do this, he had to draft his proposal
for a new law in writing on a “blank tablet”20 and publish it for the benefit of the general public
by displaying it before the Eponymous Heroes. Furthermore, should the tesmothetes encounter
contradictory laws in the system, the law decreed that “having recorded it on the tablets they
shall publicly display it in front of the statutes of the Eponymous Heroes”. 21
Anyone proposing a draft bill had to ensure that the Council would include their proposal
in the Assembly’s agenda, therefore this formality probably required some type of debate. In
addition, having previously established a specific period of time, the Assembly would discuss
and decide taking it into consideration and subsequent steps to be taken. Thus, the drafting of
the proposal, its publication, the duration of the terms for inclusion in the Assembly’s debate,
and the requisite discussion of the same, were legal requirements, non-compliance with which
could result in serious penalties for the proponent, prítans and próedros.

1.4.2 The Language of Laws

In the 4th century BC, the law consisted of written laws and the judges swore to abide by them
in their judgments. 22 Their wording would ideally be clear and precise, as in the case of
Carondas, of whom it was said, “he honed the accuracy of the laws even more than the current
lawgivers”. 23 It was Demosthenes who, in the 4th century BC, best expressed this ideal of
clarity and precision of legal language:

I presume that you will all agree with me that a really wholesome law, such as is
calculated to benefit the people, ought, in the first place, to be drawn simply and
intelligibly, not in such terms that one man thinks it means this and another that; and,
secondly, that the proceedings prescribed by the law ought to be practicable, for if a law,
though well-meant, were to enjoin what is impossible, it would be attempting the work
not of a law, but of a prayer. 24

It must not have seemed difficult for his enduring rival Aeschines to achieve these ideas as
he affirmed that, as in carpentry, when we wish to know what is straight and what is not, we
use the carpenters’ rule, which serves as our standard, the law is the unequivocal rule that
informs us as to what is just or unjust.25
However the words of Aeschines were no more than mere rhetoric. Several dikastai, who
had sworn to vote in accordance with the laws, would have attended the performance of The

20
Demosthenes (2008a: XXIV, 23 and 36).
21
Aeschines (2002: III, 39).
22
Demosthenes (2008a: XXIV, 149–151).
23
Aristotle (1999a: II.12.11).
24
Demosthenes (2008a: XXIV, 68).
25
Aeschines (2002: III, 199).
V. Zapatero Gómez 7

Clouds 26with its amusing satire on the possibilities offered by the use of double entendre as
taught to Phidippides in Socrates’ Thinkery. Another amusing text on the limitations of legal
language can be found in Lysias’ speech Against Theomnestus 27 . In this speech his client
(whose name we do not know) accused Theomnestus of causing the death of his father. But
Theomnestus insisted that he had not used the term “murderer” (androphonos) which was the
only thing prohibited by law; he had only “killed his father”. Lysias dedicated much of his
speech to trying to convince the judges that they should not speculate “on words but on their
meaning”.
In 4th century BC Athens, the law was not only a set of procedural rules (as some academics
have claimed), but also primary rules of conduct that classified possible crimes. Unaware of
the technique of definitions, the written laws inevitably contained shady areas concerning their
meaning. Also at that time, just as now, two and a half thousand years later, the openness of
legal language to interpretation (cf. Harris 2000: 27–69) was a limitation that anyone wishing
to govern through regulations needed to consider (cf. Hart 2004: 159 ff.).
This possible variety of interpretation inevitably opened up the field of discretion and
permitted its use as a legislative technique (Zapatero 2009: 262 ff.). Was Solon making use of
this technique with the vagueness and ambiguity of his laws? Plutarch interpreted it as follows:
“it is said that he was purposefully obscure and ambiguous in the wording of his laws, to
increase the discretion of his courts; for since their differences could not be adjusted by the
letter, they would have to bring all their causes to the judges, who thus were in a manner masters
of the laws”. 28
It may well have been taken then, as today, as a collateral effect of legal language; however,
not necessarily its purpose, as Aristotle was quick to state when, anticipating Hart by several
centuries, he attributed the open texture of laws to the actual nature of the language: “some
persons in fact believe that Solon deliberately made the laws indefinite, in order that the final
decision might be in the hands of the people. However, this is not likely—concludes
Aristotle—, and the reason no doubt was that it is impossible to attain ideal perfection when
framing a law in general terms; for we must judge of his intentions, not from the actual results
in the present day, but from the general tenor of the rest of his legislation”. 29 The vagueness
was for him a limitation of the legal language which, while it cannot be dispensed with, can be
reduced “as far as possible”, so that the laws “are left to the decision of those who judge”. 30
The open texture could be used to increase the field of discretion of judges and magistrates
but it was also used, as occurs to this day, to mitigate legal measures (Zapatero 2009: 262 ff.).
The fact that Athenians were familiar with these tricks is also described by Plutarch: 31

The way which, the moderns say, the Athenians have of softening the badness of a thing,
by ingeniously giving it some pretty and innocent appellation, calling harlots, for
example, mistresses, tributes customs, a garrison a guard, and the jail the chamber, seem
originally to have been Solon's contrivance, who called cancelling debts the seisacthea.

Perhaps, the numerous public debates on draft laws in the Council, Assembly, Nomothetes
sessions and possibly in the Courts, enabled the quality and precision of the resulting laws to

26
Aristophanes (2000).
27
Lysias (1992b: X, 6–21).
28
Plutarch (1979: “Solon”, XVIII).
29
Aristotle (1995: 9.2).
30
Aristotle (1999b: 1354a.30).
31
Plutarch (1979: “Solon”, XV).
1 Language and Rule of Law in Classical Athens 8

improve and progress, which was what Demosthenes wanted. Furthermore, the development
of certain interpretative canons, as they appear in forensic speeches, would help juries to fulfil
their oath; “I shall vote in accordance with the laws and decrees of the people of Athens and
the Council of Five Hundred”.

1.4.3 The Generality of Laws

Governing through laws requires generalisation (Schauer 1993); the good lawgiver generalises.
In the case of 4th century BC Athens, moreover, the ideal of isonomy inevitably required
general laws. Thus, following the fall of the Thirty, one of the first decisions taken by the
democrats was to proclaim this regulatory ideal by law: “No law shall be directed against an
individual without applying to all citizens alike, unless an Assembly of six thousand so resolve
by secret ballot”. The Athenians did not have to wait for Aristotle to appear on the scene to
enshrine the generality of the laws: philosophy would come to their aid later.
While 4th century Athenians established the requirement that laws should be general, they
clearly differentiated between the nature of laws (nomoi) with respect to decrees (psephismata).
From now on, in contrast to the traditional lack of differentiation between these concepts, the
former had to be general, whereas the content of decrees could only refer to particular cases,
such as the concession of a crown, the appointment of an embassy or any other administrative
decision. This distinction in turn determined a new division of authority: it was the Boulé and
the Assembly that approved decrees (administration) whereas the authority to approve laws lay
with the Nomothetes (legislation). And above all, this new approach to relations between laws
and decrees made, through the courts, all the bodies and judiciary of the poleis subject to the
law. It was the first judicial review in history.
The requirement that laws should be general was in the first instance an endeavour which
became legally established in 403 and, only later, did it carve out a path within the scope of
philosophy. We should recall that even many years later, Plato—so close in his youth to the
attitudes of the oligarchs—continued to defend the radical inequality between men with his
myth of the Age of Metals 32 and his ideal of the ruler as “a man who is wise and kingly”; 33
who like a good doctor does not apply protocols (general rules) but medicine appropriate for
each particular individual. A great deal of time would pass before he recognised, following his
setbacks in Sicily, the importance of general laws. 34
It was his disciple Aristotle who was particularly attached to this theme and who best
theorised on what the Athenians had legally approved a long time before. Aristotle made the
general law, as opposed to specific decree, the key to the distinction between democracy and
tyranny: “And another kind of democracy is that in which all the citizens have a share in office,
but for the law is to rule. Another kind of democracy is where all the other regulations are the
same, but the multitude is sovereign and not the law; and this comes about, when the decrees
of the assembly over-ride the law. This state of things is brought about by the demagogues”. 35
It is important to point out in passing that Aristotle’s words criticising radical democracy were
by now more applicable to Athenian democracy of the 5th century BC than the moderate
democracy of the 4th century.

32
Plato (1998: Book IV, 414–415).
33
Plato (1988: 294a).
34
Plato (2014).
35
Aristotle (1999a: IV, 1292, 25–31).
V. Zapatero Gómez 9

1.4.4 Consistency of the System

Contrary to those who consider that Athenian law was fundamentally procedural (that is, that
it was confined to regulating those procedures established for dispute resolution) and lacked
authentic primary norms or rules of conduct, it seems clear that id did regulate illegal behaviour
such as hybris, asebeia, murder, theft, adultery and a long list of other misdemeanours.
Furthermore, its definition was not left purely to the jury’s arbitration but forensic debates used
the interpretative canons—literalism, the law giver’s wishes, social effects—in order to define
and legally qualify types of conduct.
The existence of these primary norms was based on the conception of the law as a guiding
citizens’ conduct, as reasons for action, and not merely to calculate the type and intensity of
sanctions imposed (Hart 2004: 50–51). The idea was that which Plato himself referred to, when
he divided criminal laws into those that tell a man what to do, and those that are promulgated
to pursue the bad citizen.36 And once again we find this modern idea of the law, among others
in Lysias’ beautiful speech in Defence of the Death of Eratosthenes: “For to my thinking every
city makes its laws in order that on any matter which perplexes us we may resort to them and
inquire what we have to do”. 37
From the kernel of this idea of norms as reasons for action arose the requirement to avoid
laws that were contradictory. Citizens could not be subjected to the legal requirement of
contrary or contradictory behaviours. And the Athenians were particularly diligent in pursuing
this end.
The legislative procedure prior to re-establishing democracy had led, as mentioned, to chaos
in legislation. The failure to distinguish between laws and decrees, the indeterminate nature of
regulatory authority of the Council and the Assembly as well as the non-centralised publication
of decrees and laws, had led to serious inconsistencies in the complex of current norms. This
development was not new, however: as previously mentioned in 410 BC a significant process
of codification began to put the laws of Solon in order. However, it was not only important to
define the current laws at any given time, but also to create awareness of the fact that
mechanisms needed to be put in place which would prevent the approval of contradictory laws
in future. Basically there were two instruments employed to avoid as far as possible regulatory
conflicts.
The first mechanism consisted of requiring, under sanction of nullity, that all proposed laws
that contradicted any existing law would require the repeal of said law (MacDowell 1975: 70).
Demosthenes 38 insisted that “It (Athens) forbids the introduction of anything repugnant to
existing laws, except after abrogation of the law previously enacted”. 39 He recalls that in order
to legislate it is necessary to repeal contradictory laws, in order for there to be a single law “on
each one of the questions”.
This mechanism should not be sufficient and we know that, in mid-4th century BC the
Inspection Law (as it has been known since MacDowell) was approved. Aeschines tell us: “he
has expressly laid upon the Thesmothetae the duty of making an annual revision of the laws in
the presence of the people, prescribing sharp investigation and examination, in order to
determine whether any law stands written which contradicts another law, or an invalid law

36
Plato (2014: 880 d–e).
37
Lysias (1992c: 35).
38
Demosthenes (2008a: XXIV, 34).
39
Demosthenes (2008b: 93).
1 Language and Rule of Law in Classical Athens 10

stands among the valid, or whether more laws than one stand written to govern each action”. 40
And the law established that the Thesmothetae should annually display before the Eponymous
Heroes any contradictions found, and include in the agenda of the Assembly the appointment
of the Nomothetae so that there will be a single law and not several for each issue.

1.4.5 The Non-Retroactivity of Laws

If the law is designed to serve as a guide for citizens’ conduct, not only would it be necessary
to avoid contradictory rules, but any law which governed past conduct would also have no
meaning. In Greek law we can find two conflicting solutions to this issue. Draco’s law permits
the law to be retroactive: “this law (themos) shall also apply to those who have committed
homicide previously”, i.e. prior to approval of this very law (Camassa 2011: 104). A contrary
concept may be found in the Gortina Code (Levy 2000: 209).
In the 4th century BC, a retroactive law could be subject to appeal of
unconstitutionality/unlawfulness. This is what Demosthenes proposed when he contested a law
proposed by Timocrates. According to Demosthenes, Timocrates acted unlawfully because,
“he has made his law operative not merely before the date of enactment, but before any of us
were born, for he has included all past time without any limitation”, when “for, if he thought it
a fair thing to do, his proper course was to introduce a law governing future transactions; not
to lump together all offences, past and future, proven and unproven, and then register an
indiscriminate judgement upon all together”.41
The beginnings of classification of penalties is related to this idea, which according to
Ephorus had already been invented by Zaleucus (Detienne 1986: 316) and which Demosthenes
was to reiterate in Against Meidias: “You never deliver a malefactor to his accuser; for when
someone has been wronged, you do not exact the penalty in such a form as the injured party
urges upon you in each case. On the contrary, laws were laid down by you before the particular
offences were committed, when the future wrongdoer and his victim were equally unknown”. 42
There was a well-founded suspicion that trying to legislate past behaviour was no more than a
resource for covering up crimes and protecting guilty parties. 43 Bentham would, much later,
speak of the triumph of sinister interests in this type of law.

1.4.6 Display of Purposes

For the most extreme imperativist conception —for example Hobbes, Austin or Bentham—,
the law was ultimately reduced to a question of mandates. Everything that was not a mandate
or fragments of mandates, were merely an addition, obscuring the clarity of legislative language
and eroding its force. To legislate was to order; and this required precision rather than subtlety
(Zapatero 2000: XLV ff.).
Perhaps the most enduring contribution that Plato made to the art of legislation, leaving
aside his Philosopher-King, was his insistence on the requirement to reason every law. Between
the requirements of brevity and rationality, he preferred the latter.44 Therefore he proposed that

40
Aeschines (2002: III 38–39).
41
Demosthenes (2008a: XXIV, 44, 74 and 116).
42
Demosthenes (2008c: XXI 30).
43
Demosthenes (2008c: XXI 30).
44
Plato (2014: 722 b).
V. Zapatero Gómez 11

all laws should be preceded by an explanatory preamble, having abandoned the ideal of the
absolute lawgiver which he had praised in the Politics. For Plato, the lawgiver had to seek
obedience to the laws not by force but by acceptance.45 Therefore, given the rational nature of
human beings, the law needed to provide reasons, just as a good doctor explains and
recommends to his patient the benefits of the medicine prescribed. Legislation should therefore
be through persuasion: “Are we to conceive that the written laws in our States should resemble
persons moved by love and wisdom, such as a father or a mother, or that they should order and
threaten, like some tyrant and despot, who writes his decree on the wall, and there is an end of
it?” 46 And, in this regard, his only success in Sicily if we are to believe his letters was to prepare
the preambles for some of Dionysius II’s laws.
Plato’s insistence on unifying law and reason caught on during his time and thus we see
Demosthenes himself insisting that “the laws of a free state prescribe what shall be done in the
future, such laws having been enacted by convincing people that they will be beneficial to those
who live under them”. 47

1.4.7 The Stability of Laws

The idea of the immutability of laws and even the materials on which they were engraved
appeared in the first legal texts known, such as the laws of Lipit-Ishtar (1934-1924 BC) and
the so-called Code of Hammurabi (1792-1750 BC). By 458 BC, Aeschylus makes Athena say
in her mandate to the people, “So long as my citizens themselves shall make no innovation in
the laws”. 48 And Tucidides praised the wisdom of the Laecedemonians, who, for four centuries,
did not change their constitution—with this being the key to their mighty regime. 49 The
stability of laws across the whole of Greece, as E.M. Harris (2006: 302) has shown, was not
confined to oligarchic or democratic poleis; it was a goal that transcended political
organization.
The fear of frequent change in the laws had to a considerable extent been instituted by Solon.
Herodotus 50 recalls how Solon, having promulgated his laws, reached Sardis fleeing from his
fellow citizens who were pressurising him to change them before the minimum duration of ten
years. Aristotle also repeated this anecdote: “When he had completed his organization of the
constitution in the manner that has been described, he (Solon) found himself beset by people
coming to him and harassing him concerning his laws, criticizing here and questioning there,
till, as he wished neither to alter what he had decided on nor yet to be an object of ill will to
everyone by remaining in Athens, he set off on a journey to Egypt, with the combined objects
of trade and travel, giving out that he should not return for ten years. He considered that there
was no call for him to expound the laws personally, but that everyone should obey them just
as they were written”. 51 Plutarch also refers to this, describing how Solon, having tired of the
pressures of his fellow citizens who wanted to change the law, went off to sea for ten years

45
Plato (2014: 690 c).
46
Plato (2014: 859 a).
47
Demosthenes (2008a: XXIX, 76).
48
Aeschylus (2000: 682–710).
49
Tucidides (1990: Book I.18.1).
50
Herodotus (1999: Book I, 29).
51
Aristotle (1995: 11.1–2).
1 Language and Rule of Law in Classical Athens 12

claiming that “it was a hard thing in great affairs to satisfy all sides and he departed, hoping
that by that time his laws would have become familiar”. 52
One of the great innovations of Athenian democracy from 403 BC onwards was to have
found a formula for reaching a compromise between veneration of Solon’s immutable Laws
and democracy, which implied the possibility that ordinary people could change the laws. The
new nomothesis represented this compromise between permanence and legal change; between
the plans of the deposed oligarchy (patros politeia) and the programme of the winning
democrats to change the laws.
Unlike the old nomothesia of the 5th century BC, the design of the new legislative process
did not exactly facilitate the approval of new laws and, in any case, was not particularly
interested in frivolous change. Any proposal for a new law had to be debated in the Council
which considered whether or not to include it in the Assembly’s agenda. It had to await the
third session planned by the Assembly in order for a debate on whether or not it would be
accepted (what we would refer to today as ‘taking it into consideration’). As appropriate, the
old law contradicting the new proposal would have to be repealed. Subsequently the
Nomothetes were appointed and they would finally decide on its approval. Just as in modern
legislative bodies today, the procedure was not an easy one.
The laws could be changed of course but there were risks to making frivolous changes. 53
Well into the 4th century BC Demosthenes continued to remind Athenians of the Locrians’
famous Law of the Noose (Ghezzi 2006: 101–114). “I should like, gentlemen of the jury, to
give you a description of the method of legislation among the Locrians. It will do you no harm
to hear an example, especially one set by a well-governed community. In that country the
people are so strongly of opinion that it is right to observe old-established laws, to preserve the
institutions of their forefathers, and never to legislate for the gratification of whims, or for a
compromise with transgression, that if a man wishes to propose a new law, he legislates with
a noose around his neck. If the law is accepted as good and beneficial, the proposer departs
with his life, but, if not, the noose is drawn tight, and he is a dead man (...). And, during quite
a long series of years, we are told, gentlemen of the jury, that they have enacted only one new
statute”. 54 Perhaps this is the reason that we know of only a handful of laws (six) from 4th
century BC, compared to the abundant inscriptions (four hundred) of decrees (Hansen 2016:
594–610; and 1987: 156–157).

1.4.8 Publication of Laws

Lon Fuller has explained how publication is one of the components of the internal morality of
a law. If the laws are reasons for action, if they are aimed both at the good citizen who is simply
seeking guidance from the laws (cf. Holmes 1975), and the bad citizen who seeks only to find
their loopholes, they need to be public and easily accessible. This is something which the
Athenians sought to ensure, fundamentally from 403 BC onwards, through codification and the
publication of laws and their custody in the Metroon. It would appear to be Diocles who
proposed: “that laws enacted under democratic government before the archonship of Eucleides
and all laws that were enacted during the archonship of Eucleides and are on record shall be in
force. Laws enacted after the archonship of Eucleides or laws that shall hereafter be enacted

52
Plutarch (1979: “Solon”, XXV).
53
Aristotle (1999a: IV, 17–25).
54
Demosthenes (1998a: XXIX, 139).
V. Zapatero Gómez 13

shall be in force as from the day of their several enactment, unless a clause be appended
defining the date of their first coming into force”.
Therefore, publication and the exact date of the entry into force were necessary for a law to
be binding. All were in agreement in this regard, even Aeschines with his mortal enemy
Demosthenes. According to Aeschines, “an excellent thing, fellow citizens, is the preservation
of public acts. For the record remains undisturbed, and does not shift sides with political
turncoats”. 55 This referred to all the acts conserved in papyrus in the Metroon so that everyone
could consult them. From then on, the force of the laws and their capacity to govern society,
would depend on the commitment and efforts of citizens in their correct application. 56

1.5 Legislating in Athens: a Hazardous Task

We know that the exercise of politics in Athens was an extremely dangerous activity: 57 few
politicians—possibly none at all—escaped some kind of procedure, or eisangelía, during their
lives (Hansen 1987). One of the particular hazards to threaten orators was to have been the
proponent of a law that materially and formally contravened the legislative process. Some of
the topoi that I have weeded out from among the forensic and political speeches referring to
the quality of laws—concerning, for instance, the clarity and precision of language—were
recommendations or advice; but others became real legal obligations for anyone who dared to
make a legislative proposal.
We know that from ancient times, possibly since 460 BC, judicial control of legality or
graphe paranomon operated in Athens, which meant that the courts would annul those decrees
that were contrary to a law. Neither the Council nor the Assembly were responsible for
approving an unlawful decree: the demos was never mistaken; it had simply been deceived by
whoever proposed the decision (Hansen 1987: 207). And the penalties for the proponent of a
law rejected by the jury were considerable: from five hundred drachmas to atimía (loss of all
rights) or even death.58
Therefore, the new nomothesia (Canevaro 2015), which made a distinction between laws
and decrees and established a hierarchy in this respect, led to an historic innovation in
establishing beside jurisdictional control over laws (graphe paranomon me epitedeion
theinai): 59 an innovation with which, some in the US have attempted to equate with their
judicial review. However, back in 4th century Athens, in contrast to the current models for
controlling constitutionality, proposing an unconstitutional law not only implied political but
also criminal liabilities.
The reasons given for asking the courts to annul any law and to hold its proponent liable
were based on the fact that it had been drafted without taking into account systematicity
(mixing heterogeneous regulations 60), the generality of laws, 61 the retroactivity of the contested

55
Aeschines (2002: III, 75).
56
Demosthenes (1998c: XXI, 224).
57
Hyperides (2000a: XXVI–XXX).
58
Hyperides (2000b: XXIII).
59
See Wolff (1970); Yunis (1989); Lanni (2009); Sundhall (2009).
60
Demosthenes (2008a: XXIV, 49); Aeschines (2002: III, 37–40).
61
Andocides (1991: 85–86); Demosthenes (2008a: XXIV, 188–189).
1 Language and Rule of Law in Classical Athens 14

law, 62 or the failure to repeal older conflicting norms. 63 Furthermore, a law could be unlawful
if it failed to comply with any of the established processes: 64 for example it had been processed
without the prior probouleuma of the Council, the proposal had not been previously published
before the Eponymous Heroes, the established time limits had not been observed, the debate
had been denied or ignored either in the Council or the Assembly, or the proponent themselves
lacked legitimacy 65 (for having been previously condemned for prostitution or debts to the state
for example). At the same time, the proponent of a law could be accused of unlawfulness, not
merely for contravening a law which had not been previously repealed when he put forward
his proposal, but also for breaching general principles that could be deduced from the legal
system as a whole.66 Finally, the proponent of a law could also be accused of having proposed
a law which was not in the interests of the people.
This type of reason could give rise to an eisangelía, or an accusation of unlawfulness or
graphe paranomon me epitedeion theinai. The accusation was made in the first year against
whoever had proposed the law. When the time frame expired, the accusation was objectified
and was no longer directed against the proponent but against the law itself, now as a means of
constitutional control.
This was taking the quality of laws seriously.

1.6 Ideas that Resist the Passage of Time

Some years ago I decided to study the enlightened origins of the science of legislation or the
art of legislating through the works of thinkers such as Mably, Schmidt d’Avenstein, Rousseau,
Condorcet and Montesquieu. 67 The intention to make of the law a voluntas ratione animata led
them to propose a canon of legislation 68 based on generality, publication, non-retroactivity,
comprehensibility, consistency, efficacy and effectiveness, stability, and congruence of the
laws and their application. Centuries later, Lon Fuller (1969: 33 ff.) in The Morality of Law
returned to this canon. A system of legal norms, he said, required rules or general norms, their
publication, non-abuse of retroactivity, comprehensibility, consistency or an absence of
conflicts, possibility of compliance with their mandates, stability of laws and consistency
regarding the laws and their application. They are the very requirements of formal legality
which constitute one of the main elements of the rule of law. They are not inventions of our
time and, as Joseph Raz (1979: 213) has put it, they demand, among other things, “that the law
should be such that people will be able to be guided by it”. Such demands were born already
in classical Athens.
In this paper I have attempted to describe how the canon of good legislation today is, in
general terms the same as it was 2500 years ago in Athens, and how this was taken up by the
18th century proponents of the Enlightenment. In order to make these aspirations effective we
endeavour today to draw up guidelines and recommendations for improving the quality of laws.
I myself attempted to do so when sitting in government in the 1986. The Athenians were far

62
Demosthenes (2008a: XXIV, 44).
63
Demosthenes (2008b: XX, 89–95).
64
Demosthenes (2008a: XXIV, 17–18).
65
Demosthenes (2008d: XXII, 33–34).
66
Demosthenes (2008b: XX, 104–105).
67
See especially Zapatero (1998: 61 ff.; 2000: XV ff.; and 2009).
68
Montesquieu (1964: Book XXIX).
V. Zapatero Gómez 15

more expeditious; they simply made the proponents of law responsible for their quality, namely
the rhetors or the citizens. The question that concerns me is whether we can still find inspiration
in 4th century Athens BC (see Hansen 2005: 24), to help current lawgivers, assisted by our
modern draftsmen, draw up better laws.

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Chapter 2
Misconceptions in Legislative Quality: An Enlightened
Approach to the Drafting of Legislation

Helen Xanthaki *

Abstract The chapter summarises traditional teachings in legislative drafting, and identifies five
misconceptions. Misconception 1: drafting conventions always lead to quality. But the phronetic nature
of drafting prevents nomoteleia of drafting conventions. Misconception 2: Legislative quality rests in
a vacuum. But the interconnectivity between policy, law, and legislative expression render their
interdependence profound and critical. Misconception 3: legislative quality is undefinable. But
effectiveness is a prominent definition of legislative quality. Misconception 4: effectiveness always leads
to legislative quality. But legislation suffers from inherent limits: its interconnection and reliance to
regulation, the limits of legislation as written communication, and the intrinsic aversion of users to
legislative texts. Misconception 5: in view of the unsurpassable limits of legislative texts, legislative
quality should not be pursued further. But there is hope ahead, such as the layered structure of legislative
texts, the use of image in legislative texts, and the restructuring of the statute book as a whole.
Keywords Effectiveness • Phronetic legislative drafting • Legislative quality • Misconceptions

2.1 Introduction

Legislative quality has been discussed and debated in great length, now more ever than before,
with the recent EU focus on better regulation. The concept is commonly taken up by many
disciplines, all with a different focus: lawyers talk about good and bad laws, linguists debate
good and bad expression, economists discuss legislative efficiency, and political scientists seek
good regulation. All angles are welcome but there still is one piece missing from the debate:
the definition of legislative quality. What is it? How can it be achieved? Actually, can it be
achieved? Without agreeing on the semantic field of the concept and its constituent referents,
academic doctrine and professional praxis cannot benefit or advance.
From the legal perspective, legislative quality focused traditionally on legislative
expression: words, terms, syntax and grammar lay at the heart of legislative drafting analyses.
But, notwithstanding the importance of these choices, words on their own cannot nurture good
laws. This is now evident in the UK, where language conflicts have been debated heavily and

H. Xanthaki ()
UCL Faculty of Laws, University College London
Bentham House, 4-8 Endsleigh Garden, London WC1H 0EG (United Kingdom)
e-mail: [email protected]*
 2 Misconceptions in Legislative Quality 20

are seemingly resolved, at least for the time being until language and concept progress even
further. However, plainer words and syntax has not managed to produce better laws.
The hypothesis of this paper is that legislative quality, and in consequence legislative
drafting, is not about words and language. An enlightened approach to legislative drafting
proposes that legislative quality is effectiveness of the legislative provision, which is measured
by means of the text’s ability to produce the desired regulatory results.

2.2 A Traditional Concept of Legislative Quality

The traditional methodology of legislative quality is introduced by Garth Thornton into five
stages: 1

(1) Understanding the proposal.

(2) Analysing the proposal.
(3) Designing the law.
(4) Composing and developing the draft.
(5) Verifying the draft.

In practice, stage 1 involves the receipt and careful reading of drafting instructions compiled
by the policy and legal instructing officers of the department that requests the drafting of
legislation. Drafting instructions are data provided to the legislative drafter by the policy
makers as a means of assisting the drafter to draft effective legislation within the parameters
detailed by the policy makers of the government. They can be brief or detailed but they must
provide the drafter with the necessary background information for the comprehension of all
aspects of the political decision to proceed with legislation and the choice of the proposed legal
means for the achievement of government policy. They must not take the form of a lay or rough
draft law.
In the UK drafting instructions for primary legislation [government Bills] are instructed by
Government Departments. The detailed policy (namely the results that a proposed Bill is
intended to achieve) is worked out by the Administrators, with legal advice if necessary.
Administrators are administrative civil servants who are responsible for policy and
administration. Legal Advisers are based in Government Departments and are familiar with the
legal framework (statutory and common law) under which the Department operates. Drafting
instructions are prepared by a Legal Advisor, in close consultation with the Administrators.
The Legal Adviser’s main tasks are to work out what additions to, or changes in, the law are
needed to give effect to the policy; to provide all the information the drafter needs in order to
be able to draft the Bill (namely, to provide the drafter with proper drafting instructions; to
discuss with the drafter any problems or difficulties arising out of the instructions; to ensure
that every draft produced by the drafter is thoroughly examined by the Legal Adviser and the
Administrators to see whether it achieves the desired results and to correct errors, wrong
internal references etc. Above all, to make sure that the final draft really will achieve the main
results desired. Detailed instructions prepared by Legal advisers within the Department are sent
to the Office of Parliamentary Counsel (OPC). This is the concept of the “Bill Team”.

1
See Xanthaki (2013a: 145–162).
H. Xanthaki 21

Private Members’ Bills do not, in principle, receive drafting support from the OPC. And
delegated legislation is instructed and drafted within each Government Department.
Stage 2 involves the compilation of a legislative plan, also known as a legislative research
report. It involves a brief or longer report on the basic elements of the drafter’s response to the
drafting instructions. It does not need to be complete, but a written sketch of the report or plan
will assist the drafter to reap the advantages of the design of a legislative solution. The main
advantage of a legislative plan is that it ensures that the end result of the legislation is what is
expected from their policy makers: often matters of policy arise when the drafter attempts to
transform an idea to a legislative text. Thus, the design acts as a bill’s quality control. The
legislative plan includes an analysis of the existing law (the mischief); an analysis of the
necessity of legislation, a regulatory tool that can only be used as a solution of last resort where
every other regulatory choice would not be effective; analysis of potential danger areas
(constitutional, legal, practical); and an analysis of the practical implications of the legislative
proposal, including an analysis of matters for which secondary legislation is likely to be needed
to implement the draft law.
And so the legislative plan includes the following elements of content:

• Identification of the causes of the problematic behaviours behind the social need;
• Preliminary choices:
- delimitation of the scope of the legislative solution: identification of the specific
behaviour to be addressed and differentiation from other intertwined behaviours
- history of the social problem as a means of understanding the elements for its
regulation
- comparative experiences as a means of identifying solutions offered elsewhere;
• Potential solutions to the problem by use of foreign experiences, academic opinion and
departmental analyses included in the drafting instructions;
• Conformity inducing measures (punishments; civil damages or penalties; rewards; indirect
measures); 2
• Description of the proposed solution;
• Analysis of the effectiveness of the proposed legislative solution;
• Analysis of the bill’s probable cost and benefits;
• Identification of the monitoring and feedback systems (such as periodic evaluation of the
effectiveness of the bill or sunset clause introducing limited life of the bill); and
• Justification of the bill’s implementing provisions (such as the subjection of new duties to
an existing agency or the creation of a new administrative, state or private agency; in the
latter case a description of the new agency, appointment of members, and duties and
powers of the agency must be included in the design of the legislative solution).

Stage 3 of the drafting process involves designing the law, namely structuring the legislative
text in a manner that facilitates understanding, and consequently invites implementation.
Bergeron (1999) states that Bills must be arranged in a logical order. The provisions of the
statute that are of a permanent nature precede those expected to have a limited life. The statute
must be preceded by a table of provisions showing the headings and the section titles. The table
of provisions is not part of the statute but is included to make it easier to consult. The statute is

2
See Rose (1959: 470).
2 Misconceptions in Legislative Quality 22

divided into parts only in those cases where the number of sections and the possibility of
arranging them in categories constituting adequate conceptual units justifies this.
But the main source of doctrine when it comes to structure is Lord Thring, former First
Parliamentary Counsel, who expressed his prioritisation of provisions in 5 rules (Crabbe 1998:
148–150):

Rule 1: Provisions declaring the law should be separated from, and take
precedence of, provisions relating to the administration of the law:
• “Convenience demands a clear statement of the law as distinct from its
administration. One must know the law before questions of administration can
arise hence the precedence of the statement of the law over its administration.
• Thus the advice is:
- state the law, and then
- state the authority to administer the law, and then
- state the manner in which the law is to be administered”.
• An example is the setting up of the office of Coroners. It is advisable to establish
the office of Coroner before stating the law of inquest. In such cases the law, as
it were, emanates from the authority rather than the other way round.

Rule 2: The simpler proposition should precede the more complex and, in an
ascending scale of propositions, the less should come before the greater.
• Thus, in principle, assault should be provided for before aggravated assault.

Rule 3: Principal provisions should be separated from subordinate provisions

• The subordinate provisions should be placed towards the end of the Act, while
the principal provisions should occupy their proper position in the narrative of
the occurrence to which they refer. Principal provisions declare the material
objects of the Act. Subordinate provisions are required to give effect to the
principal provisions. They may deal with details, and thus complete the operation
of the principal provisions.

Rule 4: Exceptional provisions, temporary provisions and provisions relating to

the repeal of Acts should be separated from the other enactments, and placed by
themselves under separate headings.

Rule 5: Procedure and matters of detail should be set apart by themselves, and
should not, except under very special circumstances, find any place in the body
of the Act.
• This will explain the use of Schedules and sometimes of Regulations. In
company legislation model Regulations could be set out in a Schedule. Procedural
and administrative matters can also be delegated to subordinate legislation. Thus
Parliament deals with the substantive law, and the procedural law is settled by
departmental officials.
H. Xanthaki 23

In practice, a Bill can include some of the following types of provisions (New Zealand Law
Commission 1996):

• Preliminary provisions
- Long title
- Preamble
- Enacting clause
- Short title
- Commencement
- Duration/Expiry
- Application
- Purpose clause
- Definitions
- Interpretation

• Principal provisions
- Substantive provisions
- Administrative provisions

• Miscellaneous
- Offences and provisions ancillary to offences such as time limit for prosecution,
continuing offences, offences by corporations, and vicarious responsibility.
- Miscellaneous and supplementary provisions such as evidentiary provisions, a
power to make subordinate legislation, service of notices, powers of entry and search,
seizure and arrest.

• Final Provisions
- Savings and transitional (these may also be placed in a schedule if they are long)
- Repeals
- Consequential amendments (these may be placed in an annex especially if the
repeals and consequential amendments are numerous and can conveniently be
presented in a tabular form)
- Schedules

Modern legislative drafting theory, as part of the plain language movement demanding
plainer legislative texts, urges legislative drafters to bare the text from preliminary provisions
and, following the lessons learnt from media studies and advertising, to start as early as
possible with the regulatory message that the government is trying to convey to citizens.
Legislation is a form of communication: it involves, in its most part, the expression of a
prohibition of citizen activity: after all, citizens can do whatever they wish, unless law prohibits
it. And so the pursuit of modern drafters is to share that message with their audience (the users
of the legislation) in a manner that gets them to get heard loud and clear.
And so, the traditionally long list of preliminary provisions is being cut shorter and shorter.
The long title, namely the description of the manner in which the law is reformed, remains at
the very top of modern legislative texts. But the role of the preamble is diminished to a
2 Misconceptions in Legislative Quality 24

cosmetic one in the case of archaic or ceremonial laws, or to a transitional one in the case of
the confirmation of the legal basis of the law and the observance of the constitutional stages
of the legislative process in newer or weaker democracies. The enacting clause remains, as a
constitutional requirement without which the text lacks legitimacy. The short title remains as
a means of reference to the law in the index of the statute book. But commencement, duration,
expiry, application, and interpretation provisions are now transferred to the final provisions
part. Similarly, definitions are finding their way either in final provisions or, preferably, in
schedules at the back of the legislative text. And what seems to be making a surprise revival
is purpose clauses, which may have been persecuted to extinction in the past but now are
invited back as objectives clauses including measurable and concrete criteria for the
effectiveness of the legislation in regular post-legislative scrutiny cycles.
Substantive provisions introduce rights, powers, privileges, and immunities of persons to
be benefited or regulated. These provisions are drafted as prescriptions, prohibitions,
regulations or combinations. Statutory corporations are introduced with care: their powers can
only be those awarded to them by statute and those which are necessary for the completion of
the purpose of incorporation (even if they are not directly awarded to them by statute).
Licensing and registration provisions cover the appointment of a licensing authority, the object
of its activity, the manner of application for the licence, the sanctions for breach of the
obligation to obtain a licence or fraudulent behaviours in the procedure, appeals procedures,
inspection issues, subsidiary legislation and any transitional regimes.
Final provisions include savings, transitional provisions, repeals and consequential
amendments, and schedules. Savings provisions preserve or “save” a law, a right or privilege
that would otherwise be repealed or cease to have effect. In other words, saving provisions
keep in being laws, rights or obligations that might otherwise disappear when an existing law is
repealed. Transitional provisions are necessary to enable a smooth transition to be made between
the existing law and the new law; they tie up the loose ends which would otherwise be left
dangling. Although savings and transitional provisions are often confused, they are two different
species and should carry separate headings. Savings provisions do not relate to time: they simple
preserve a circle of persons or activities from the field of application of the new regime; they are
long term provisions. Transitional provisions focus on regulating for the short term issues that
continue to fall within the field of application of both the old and new regime but the regulation
changes with the new regime. They are short term provisions that regulate the transition between
the old and the new regime for the same class of subjects, or objects, or activities.
Repeals are deletions of provisions or Acts from the statute book. They must be introduced
expressly to avoid confusion. Implied repeals, namely repeals that come about de facto but
have not been expressly introduced in the legislative text are an anomaly of drafting and cannot
be tolerated. At the end of the day, repeals are a drafter’s not a judge’s job. Repeals can be
simple, where legislation is no longer required (unusual in practice); combined with re-enactment,
where a new enactment consolidates the law that is essentially unchanged; or combined with
replacement, where existing legislation is being remolded to meet new circumstances in different
ways (the most usual circumstance in practice). It is still questionable whether amending Acts or
subsidiary legislation deriving from the repealed Act need to be expressly repealed. From a
constitutional and statutory interpretation perspective, they do not need to be repealed, as they
will have merged with the principal Act on coming into force. From that point of view, express
repeal of such an amending Act or provision would be required only in the rare instance that it
had not yet come into force at the date of proposed repeal. But from a drafting perspective where
clarity and certainty in the law lies at the heart of the matter, express repeal even of delegated
legislation is crucially helpful to the user, and must be upgraded to best practice.
H. Xanthaki 25

Schedules are provisions attached to the main text of the law, hanging from a substantive
provision within the text. They free the main body of an Act from a possible charge of
untidiness (Crabbe 1998: 145–147). The use of schedules can make a substantial contribution
to effective communication by clearing away procedural and other distinct groups of
provisions to schedules in order to present the main provisions of the statute prominently and
in a less cluttered package. The Keeling Schedule is a device that “sets out the wording of the
enactment, indicating by bold type the changes proposed” (Bennion 1990: 56). It is only used
where the changes made by the Bill in the previous enactments are exclusively textual
amendments or repeals. “The Keeling technique not only shows, in the Schedule how the law
will look once it is amended, but also makes clear, in the text of the Bill itself, how the law is
being amended” (Renton Committee 1975: para 13.22).
Stage 4 sees the actual drafting of the text. The drafting of substantive provisions requires
application of the rules for words and grammar that are considered to serve the intelligibility
of the text. Drafters use words that are plain, clear, well understood, and unambiguous. Bad
practices include the use of unnecessary words; the use of the same word or phrase in different
contexts; synonyms; jargon; passive voice; plural; gender specific language; archaic terms
(such as “said” as an adjective); the use of “shall” to express a duty, obligation or prohibition.
Best practice includes the use of the present tense and indicative mode; the use of “may” to
express a power or privilege, and “must” or present tense to express the imperative mode; and
gender-neutral language. Best practice also encourages good presentation techniques. Drafters
lay out the draft so that, when printed, the text is are easy to work with. And so encouraged is
the use of plenty of “white space” (i.e. the text is not densely packed); short sentences, and
paragraphing to display component parts; a consistent system for numbering articles,
paragraphs and tabulations; and visual aids, such as formulae, maps and diagrams.
Stage 5 involves the verification of the legislative text. Drafts need to be verified as a
means of achieving quality. Verification takes place internally, namely within the drafting
team, and externally, namely by other interested Ministries and affected agencies. Scrutiny of
the legislative text should be a continuous process throughout the drafting, particularly to
improve its clarity and to check its practicability. Best practice calls for each version of a draft
should be subjected to scrutiny of legal form, clarity and comprehensibility; and at the end of
drafting, the final version of the law must be scrutinised on a wider range of matters, including
a series of legal verifications. Checks on legal form, clarity and comprehensibility includes
controls that the conventional requirements as to the form, structure and presentation of
legislation have been followed; the language of the legal provisions follows standard language
usages and is easily comprehended and free of ambiguity; the ordering of the provisions in the
law is logical and facilitates its use; terms used in the law are followed consistently throughout
the law and that unnecessarily legalistic or archaic terms are not used. Legal verification
checks include constitutional and legal compliance controls.

2.3 An Enlightened Approach to Legislative Quality 3

The drafting conventions detailed in the traditional approach are often viewed as sacred
traditions in legislative drafting: principles that are followed blindly, without bothering with
the identification of their theoretical roots. This makes their replication and accurate

3
On this topic, see further Xanthaki (2011a: 18–26).
2 Misconceptions in Legislative Quality 26

application in new cases of legislative dilemmas either religiously bound to past precedent or
haphazard in the choice of their prioritisation against other relevant conventions.
In fact, drafters debate over the existence of conventions at all (Xanthaki 2008: 1). Common
lawyers deny the existence of conventions and view legislative conventions as traditional
wisdom of drafters past, followed simply because they once seemed to work well. Since to
them drafting is a pure form of art (Scharffs 2001: 2339) or a quasi craft (Nutting 1955: 76),
creativity and innovation lies at the core of the task. Rules and conventions bear relative value,
and the main task of the drafter is to learn the craft from those with more experience. For the
civil lawyers drafting conventions are binding. Since drafting is a science or technique,
conventions are formal rules that, if applied correctly, lead to legislative quality repeatedly.

2.3.1 And here lies misconception number 1: Legislative quality comes via the
application of a specific legislative convention

Conventions do exist and indeed they are important, because they have worked in the past. But
they are not shackles in the drafter’s feet. Where they benefit legislative quality, they are an
aid. Where they prevent legislative quality, they bow down to alternative choices.
This is supported by the phonetic theory of legislative drafting. For us phroneticists,
legislative conventions cannot share the universality and infallibility of science. Gravity
applies everywhere, and at all times. Law is different. “All law is universal but about some
things it is not possible to make a universal statement which will be correct... the error is not
in the law nor in the legislator but in the nature of the thing” (Aristotle 1926: 5.10, 1137b 13–
24). Using the term “shall” may be an abomination for those of us who avoid ambiguity, but
it would be rather misguided to reject the use of the term rigidly: it may well be that “shall”,
ambiguous as it is, would be understood better, and therefore be more effective, in amendments
of archaic laws where the term is used repeatedly to signify “must”; here, using the term
“must” in conjunction with the existing “shall” would create the legitimate impression to the
user that the meaning of “shall” and “must” is somewhat different.
But the relativity and flexibility of drafting conventions does not necessarily equate to
anarchy. Of course, its rules are not rigid, but they are present. The use of synonyms is a
principle by which drafters abide, mainly to serve clarity. There may be exceptions to all rules
of drafting, but this does not mean that there are no rules. And these rules carry with them a
degree of relevant predictability, since the latter is one of the six elements of theory (Flyvbjerg
2001: 39).
Drafting as phronesis is “akin to practical wisdom that comes from an intimate familiarity
with contingencies and uncertainties of various forms of social practice embedded in complex
social settings” (Schram and Caterino 2006: 8). In other words, the art of drafting lies with the
subjective use and application of its science, with the conscious subjective Aristotelian
application and implementation of its universal theoretical principles to the concrete
circumstances of the problem (Eskridge 1990: 635). Phronesis supports the selection of
solutions made based on informed yet subjective application of principles on set circumstances
(Engle 2008: 4). Phronesis is “practical wisdom that responds to nuance and a sense of the
concrete, outstripping abstract or general theories of what is right. In this way, practical
wisdom relies on a kind of immediate insight, rather than more formal inferential processes”
(Rideout 2008: 75).
So the drafter’s task simply involves the choice of the appropriate rule or convention that
delivers the desired results within the unique circumstances of the specific problem at any
H. Xanthaki 27

given time. In other words, the drafter needs to be aware of the multitude of often clashing
rules and conventions; the drafter needs to identify the most relevant set of circumstances
applicable to the problem; and the drafter needs to have the theoretical knowledge and practical
experience to promote the rule or convention that best delivers under the mostly unique
circumstances of the problem. In other words, as drafting entails both elements of art and
elements of science, the drafter’s task entails both identification of all relevant circumstances
and rules; and promotion of the most appropriate rule.
Phronesis offers an excellent theoretical framework for legislative quality outside of
drafting conventions. Since these are existent but relative, legislative quality cannot be based
on them. In other words, the choice and application of a legislative convention does not lead
to good law.
If the current lists of drafting rules and conventions cannot adequately serve as elements of
quality in legislation, how can one define the concept of quality? It has now become obvious
that this is not a matter of agreeing or disagreeing in the components of an empirical or
technical definition. If the fault lies with the subjective and inexorable nature of drafting rules,
then we need to review our approach to quality by seeking its definition on a non-technical,
non-empirical nature.

2.3.2 Here Lies Misconception Number 2: Legislative Quality Rests in a Vacuum

If one sees legislation as a tool for regulation, then drafting becomes simply part of the
legislative process, which in turn is part of the policy process (Stefanou 2008: 321, 323). The
object of a policy process is the promotion of a government policy, or from a social perspective
the regulation of a citizens’ activity. A good law simply contributes to the achievement of the
policy that it serves. In other words, the government of the day seeks to implement its policy
by use of the policy process. During the policy process, legislation may be selected as the
optimum tool for implementation: if this is the case, the legislative process comes into play. It
is within the legislative process that drafters undergo each one of Thornton’s five stages of
drafting and draft legislation. To retrace this journey backwards, the drafter drafts, the
legislature passes laws, and thus the government executes the programme of policies with
which it has been elected to govern.
If one takes this holistic picture of legislation as a tool for regulation into account (OECD
2006), identifying the goal of the drafter as achieving “quality in legislation” is a rather short
sighted and narrowly focused approach. In application of Stefanou’s scheme on the three
processes, drafters can only aim to perform well in their little, albeit crucial, part in the
application of governmental policy better expressed as regulation. (Xanthaki 2011b: 75)
As a law on its own cannot produce adequate regulatory results without synergy from the
other actors of the policy process (Chamberlain 1931: 243), a good law is one that, with
synergy, is able of producing the regulatory results required by policy makers (Mader 2001:
126). A good law is one that is capable of leading to efficacy of regulation. A good law is an
effective law. And ultimately, quality in legislation is effectiveness. Effectiveness is the
criterion that drafters use when selecting the most appropriate drafting rule for the problem
before them. This qualitative definition of quality in legislation respects and embraces the
subjectivity and flexibility of both drafting rules and conventions and, ultimately, of phronetic
legislative drafting (Xanthaki 2010: 111).

2.3.3 Here Lies Misconception Number 3: Legislative Quality Is Not Definable

 2 Misconceptions in Legislative Quality 28

In a search for a qualitative definition of quality in legislation, one can resort to functionality.
If legislation is a mere tool for regulation, and indeed a tool only to be used if everything else
will fail (Weatherhill 2007: 19), then a good law is simply a law that, if it enjoys support and
cooperation from all actors in the legislative process (Chamberlain 1931: 243), is able of
producing the regulatory results required by policy makers. In other words, a good law is
simply a law that is capable of achieving the regulatory reform that it was released to effectuate
or support (Mader 2001: 126). A good law is one that is capable of leading to efficacy of
regulation. There is nothing technical at this level of qualitative functionality: what counts is
the ability of the law to achieve the reforms requested by the policy officers. And, in view of
the myriad of parameters that are unique in each dossier, there are no precise elements of
quality at this level. If anything, this qualitative definition of quality as effectiveness reflects
the subjectivity and flexibility of rules and conventions in phronetic legislative drafting.
But does the qualitative functional approach to the definition of quality in legislation signify
that everything goes? The answer is of course negative: legislative drafting is phronetic, it is
not art. In phronetic legislative drafting, one must be able to identify basic principles that, as a
rule, can render a law good. Cost efficiency, clarity, precision, and unambiguity are such
principles: when applied, at least in the majority of cases, they lead to good laws. But, at the
end of the day, each dossier carries subjective choices for the drafter, choices made on the
basis of the ultimate functional test: effectiveness. What makes a law a good law therefore is
the ability of the drafter to use the criterion of effectiveness consciously and correctly. What
is correct application of the effectiveness criterion is a matter of debate and deliberation within
the drafting team: after all, even drafters are human. Perhaps this is the beauty of a drafter’s
trade: there are no safety nets, no walls to hide one’s nudity before the cruel sword of the end
result.

2.3.4 Here Lies Misconception Number 4: Effectiveness Always Leads to Quality 4

Effectiveness has opened the ground to great innovations in legislative drafting. Many of those
are present in the laws of the UK, such as gender neutral drafting, 5 the use of explanatory
memoranda, 6 the placement of definitions at the end and probably in a schedule (Office of
Parliamentary Counsel 2010: 31), or the increased use of Keeling schedules, 7 to name but a
few. The increasing use of visual aids in legislation, such as the Australian depiction of the
coloured Australian flag in the schedule of the relevant Act, which also includes a clickable
link to the sound of the national anthem, is a tool for clarity and unambiguity in the introduction
of diagrams, pictures, and songs in legislation. The increasing use of explanatory materials in
the introduction of legislative drafts in the Commonwealth responds to the need for additional
clarifications of the policy and text, which are deemed too detailed to be accommodated in the
modern, dry, short style of legislation. The condemnation of general implied consequential
amendment clauses in Africa is addressed by exhaustive lists of express direct and
consequential amendments, including those related to delegated legislation. The technique of
restatement in Ireland is a direct response to the former ambiguity invited by detailed, direct
amendments of legislation, which rendered the text unapproachable to the users. The
replacement of mosaic laws via the New Zealand’s Miscellaneous Act that breaks down into

4
On this topic, see further Xanthaki (2013b: 128–143).
5
Statement of the Leader of the House of Commons on 8 March 2007.
6
See http://www.parliament.uk/site-information/glossary/explanatory-memorandum
7
House of Lords Select Committee on Constitution, Fourteenth Report, 2004,
http://www.publications.parliament.uk/pa/ld200304/ldselect/ldconst/173/ 17302.htm, chapter 4, 89.
H. Xanthaki 29

its constituting parts, which upon passing find their place in the precise Acts under amendment,
constitutes a pursuit for a mechanism for clarity in the statute book. The introduction of
primary and delegated legislation together as a whole regulatory package submitted before the
Kenyan Parliament signifies an innovative approach to the constitutional and drafting
deficiencies of modern overflowing of delegated legislation. The EU’s frequent use of sunset
clauses coinciding with the end of the cycle of monitoring of the legislative text is a unique
technique forcing the regulators to re-consider the necessity and effectiveness of the legislation
and to act in order to avoid, if necessary, the end of life of the legislative text. The recent calls
for a return of purpose or objectives clauses in legislation, provided that the latter list the
factors to be taken into account when tangible and measurable effectiveness is monitored at
the pre and post-legislative scrutiny exercises are a wonderful mechanism to express the link
between policy choices and legislative expression, and to address regulation as a full circle
beginning with policy formulation and ending with the juxtaposition of legislative objectives
against the achievement of tangible policy aims. And finally, the placement of definitions at
the end of the legislative text, perhaps even in a schedule, is a fantastic attempt to bare the
legislative text from anything that detracts from the regulatory message and its placing at the
forefront of legislative communication with the user.
But all these wonderful steps towards effectiveness stumble to the inherent limits of
legislation as a product.

2.3.4.1 Legislation as a Tool for Regulation

Legislation is simply a tool for regulation, namely a tool in the process of putting government
policies into effect to the degree and extent intended by government. In other words, legislation
is one of the many weapons in the arsenal of governments for the achievement of their desired
regulatory results (Flückiger 2004: 159), which in turn is the prevalent measure of policy
success (Staem 2006: 7). The regulatory tools available to government vary from flexible
forms of traditional regulation (such as performance-based and incentive approaches), to co-
regulation and self-regulation schemes, incentive and market based instruments (such as tax
breaks and tradable permits) and information approaches (OECD 2002). But legislation
remains one of the most popular regulatory tools.
So what is legislation attempting to achieve and by what means? The diagram below
visualises these goals and their hierarchy (Xanthaki 2008).

Fig. 1. Hierarchy of legislative goals

2 Misconceptions in Legislative Quality 30

Starting with efficacy, this is the extent to which regulators achieve their goal (Mousmouti
2012: 191). The term is often used interchangeably with effectiveness, especially by experts
outside the field of legislative studies (Flückiger 2007: 83). But the concept of the main
regulatory goal remains the achievement of the desired regulatory results. However, achieving
the desired regulatory results is not a goal that can be achieved by the drafter alone
(Chamberlain 1931: 243): legislation requires a solid policy, appropriate and realistic policy
measures for its achievement, cost efficient mechanisms of implementation, and ultimately
user willingness to implement and judicial inclination to interpret according to legislative
intent.
The drafter’s limited possible contribution to efficacy is effectiveness (Timmermans 1997:
1236–1237), defined as the extent to which the observable attitudes and behaviours of the
target population correspond to the attitudes and behaviours prescribed by the legislator
(Mader 2001: 119, 126); or “the fact that law matters: it has effects on political, economic and
social life outside the law – that is, apart from simply the elaboration of legal doctrine” (Snyder
1993: 19); or a term encompassing implementation, enforcement, impact, and compliance
(Teubner 1992: 451); or the degree to which the legislative measure has achieved a concrete
goal without suffering from side effects (Müller and Uhlmann 2013: 51–52); or the extent to
which the legislation influences in the desired manner the social phenomenon which it aims to
address (Jenkins 1981: 180; Cranston 1978/1979: 873, 875); or a consequence of the rule of
law, which imposes a duty on the legislator to consider and respect the implementation and
enforcement of legislation to be enacted (Voermans 2009: 230); or a measure of the causal
relations between the law and its effects: and so an effective law is one that is respected or
implemented, provided that the observable degree of respect can be attributed to the norm
(Mousmouti 2012: 200). If one attempts to use all of the elements of these enlightened
definitions of effectiveness, one could suggest that effectiveness of legislation is the ultimate
measure of quality in legislation (Xanthaki 2008: 6), which reflects the extent to which the
legislation manages to introduce adequate mechanisms capable of producing the desired
regulatory results. In its concrete, rather than abstract conceptual sense, effectiveness requires
a legislative text that can (i) foresee the main projected outcomes and use them in the drafting
and formulation process; (ii) state clearly its objectives and purpose; (iii) provide for necessary
and appropriate means and enforcement measures; (iv) assess and evaluate real-life
effectiveness in a consistent and timely manner (Mousmouti 2012: 202).
And so this is the first and main inherent limit of legislation. As a mere expression of the
regulatory agenda, legislation inevitably relies on the soundness of the policy goals and
regulatory aims set by regulators. Legislation requires a constitutionally, legally, ethically,
and democratically justified (in the sense of acceptable by the majority) policy aim pursued by
equally constitutional, legal, ethical, democratic, and cost efficient means to achieve it.
Moreover, it relies on the intent of users and interpreters to comply with it. Of course, this
interdependence of policy, regulation, legislation, and implementation works both ways: good
legislative expression can accentuate the logic of the policy, can clarify the choice of
regulatory tools, and can ultimately incite implementation. But in the same way that efficacy
requires legislative facilitation of regulatory success, it also requires the synergistic
contribution of all parts and actors of the drafting process as part of the legislative process.

2.3.4.2 Legislation as Written Communication

Added to the lack of its ultimate control over efficacy, legislation is further limited by the
means by which it can pursue efficacy. The diagram above expresses that effectiveness can be
H. Xanthaki 31

achieved by means of clarity, precision, and unambiguity. And that these can be enhanced by
the use of plain language and gender neutral language. Legislation aims to communicate the
regulatory message to its users as a means of imposing and inciting implementation. It attempts
to detail clearly, precisely, and unambiguously what the new obligations or the new rights can
be, in order to inform citizens with an inclination to comply how their behaviour or actions
must change from the legislation’s entry into force. The receipt of the legislative message in
the way that it was sent by the legislative text is crucial for its effectiveness and, ultimately,
for the efficacy of the regulation that the text expresses.
Plain language aims to introduce principles that convey the legislative/regulatory message
in a manner that is clear and effective for its audience. Plain language encompasses all aspects
of written communication: words, syntax, punctuation, the structure of the legislative text, its
layout on paper and screen, and the architecture of the whole statute book as a means of
facilitating awareness of the interconnections between texts. And so plain language begins to
kick in during the analysis of the policy and the initial translation into legislation, with the
selection and prioritization of the information that readers need to receive. It continues with
choices related to structure during the selection and design of the legislative solution, with
simplification of the policy, simplification of the legal concepts involved in putting the policy
to effect, and initial plain language choices of legislative expression (for example, a decision
for direct textual amendments combined by a Keeling schedule, or a repeal and re-enactment
when possible). Plain language enters very much into the agenda during the composition of
the legislative text. And remains in the cards during the text verification, where additional
confirmation of appropriate layout and visual appeal come into play. And so plain language
extends from policy to law, and ultimately to drafting. The existing concept of plain language
relates to a holistic approach to legislation as a text, as a printed or electronic image, and as
part of the statute book.
But the blessing of this ambitious mandate constitutes the weakness (or is it limit?) of plain
language as a main contributor to clarity, precision, unambiguity, effectiveness, and ultimately
efficacy. Plain language cannot be distilled to the set of rules that must always be followed:
the rules are relative and directly affected by the precise audience of the specific legislative
communication: mens rea is easily understood by a legal audience but of course it is an
unfamiliar term to audiences without legal sophistication. The relativity of plain language is
expressed by the recent replacement of objective simplification as its goal with the more
subjective easification. Easification requires simplification of the text for its specific audience,
and thus requires an awareness of who the users of the texts will be, and what kind of
sophistication they possess. And it must do so in a single document: possible clashes between
various instruments at various levels would incite uncertainty in the law, thus making it
ineffective anyway.
Answers to these questions were simply not present for legislation until very recently. It
was widely accepted that legislative communication involved the drafter (who, at least in the
UK, is a trained lawyer with drafting training and experience) and the generic user (who can
be anything from a senior judge to an illiterate citizen of below average capacity). The
inequality in the understanding of both common terms (whichever they may be) and legal
terms renders communication via a single text a hopeless task. And this is precisely the second
limit of legislation: communication from a trained and highly experienced lawyer to a wide
circle of possible audiences with vast diversion of general and legal sophistication is simply
an impossible task. Much more so if this is attempted by means of a single written text. This
deprives the communication sender from the opportunity to gauge reception and make amends
 2 Misconceptions in Legislative Quality 32

by means of further clarification where needed, or by means of intonation or even gestures that
are simply not available in written communication.
It is this inherent limit of legislation that has led to the supplementing of the legislative text
by parliamentary interpretation, policy guidance, explanatory materials, and annotations. What
these fail to take into account though is the change in user attitudes: at a time where users are
used to using the internet to receive direct answers from the original sources of communication
instead of relying on intermediary professionals, legislation is used as a direct source of
answers to questions related to the text. This is proven by the 2,000,000 users per month of the
UK government’s free electronic legal database. But more about this a bit later. For now, it
suffices to identify the second limit of legislation, its presentation in the form of written
communication.

2.3.4.3 The Intrinsic Aversion of Users to Legislative Texts 8

The last limit of legislation relates to a phenomenon observed and recorded by the Office of
Parliamentary Counsel: users’ aversion to legislation. This takes the form of perceptions of
over-complexity or negative perceptions. The OPC is not unique in identifying this as an issue:
the basis of the plain language movement lies with legislative complexity with reference to
words, structure, and placement within the architecture of the statute book.
In other words, users of diverse legal sophistication are overwhelmed by the volume and
complexity of legislation. They find it difficult to understand the terminology used with the
text, the structure of the Act itself, and the interconnection of the Act with other primary and
secondary legislative texts and the statute book as a whole. What users find intimidating is not
just the words themselves (one could argue that the simplification of words has come a very
long way) but the context of the legislative message within the many provisions of the same
Act, and within the labyrinth of relevant primary and secondary sources of law.
Negative perception of legislation describes the phenomenon of citizens’ attribution of
more complexity to legislation than it actually is. Navigation between pieces of legislation is
often the problem. Users also appear to find it difficult to find reliable explanatory information
and relevant guidance.
This is the third limit of legislation: it is an inherent living and ever evolving organism of
complexity whose understanding requires context, both conceptual and historical. In other
words, legislation needs to be accessible in a manner that allows the user to understand what
the law (rather than the specific legislative text) is, at any given moment in time.

2.3.5 Here Lies Misconception Number 5: There is Nothing More to Be Done for
Legislative Quality

One could argue, rather persuasively, that these are unsurpassable limits of legislative texts.
They form part of the characteristics of legislation as a product. And one could resign to their
prevalence. But that would mean resigning to the ineffectiveness of legislation, or its
inappropriateness as a regulatory tool. This could not be further from the truth. Having
identified its measure of excellence, and the means by which legislation can achieve it, the
study of legislation must now turn to its weakness and an assessment of a method that can

8
https://www.gov.uk/government/publications/when-laws-become-too-complex/when-laws-become-
too-complex
H. Xanthaki 33

reduce the effect of these inherent limits. Until very recently, this was impossible. What can
facilitate communication is the identification of the possible precise users of the specific
legislative text: identifying who the users of the text will be allows the text to ‘speak’ to them
in a language that tends to be understood by them. Until now identifying the users was a
hypothetical and rather academic exercise. Recent empirical data offered by a revolutionary
survey of The National Archives (TNA) in cooperation with the Office of Parliamentary
Counsel have provided much needed answers. The survey of 2,000,000 samples of users of
www.legislation.gov.uk has identified at least three categories of users of legislation: lay
persons reading the legislation to make it work for them, sophisticated non-lawyers using the
law in the process of their professional activities, and lawyers and judges. In more detail in the
UK there are three categories of users of legislation:

a. Non-lawyers who needs to use legislation for work, such as law enforcers,
human resources professionals, or local council officials; the ‘Mark Green’ of the
survey represents about 60% of users of legislation;
b. Lay persons who seeks answers to questions related to their personal or familial
situation; ‘Heather Cole’ represents about 20% of users of legislation; and
c. Lawyers, judges, and senior law librarians; the ‘Jane Booker’ persona
represents about 20% of users of legislation.

The significance of the survey cannot be understated. The survey, whose data relate to users
of electronic versions of the free government database of legislation only, destroys the myth
that legislation is for legal professionals alone. In fact, legal professionals are very much in the
minority of users, although their precise percentage may well be affected by their tendency to
use subscription databases rather than the government database, which is not annotated and
often not updated. Whatever the exact percentages of each category are, there is significant
empirical evidence that in the UK legislation speaks to three distinct groups of users, whose
legal awareness varies from none, to some, to expert. But is the legal awareness of the users
the only parameter for plain language as a means of effective legislative communication?
Pitching the legislative text to the ‘right’ level requires an additional consideration. Having
realised which are the rough profiles of the audience, the next parameter for plain
communication is the topic of the legislative text. Legislative texts are not all aimed at the
same readers. Their primary audience varies. For example, the main users of rules of evidence
are probably judges and lawyers. So the language and terminology used can be sophisticated:
paraphrasing the term ‘intent’ with a plain language equivalent such as ‘meaning to’ would
lead the primarily legal audience to the legitimate assumption that the legislation means
something other than ‘intent’ and would not easily carry the interpretative case-law of ‘intent’
on to ‘meaning to’. And so rules of evidence can be drafted in specialist language, albeit with
a caveat: a primarily legally sophisticated audience cannot serve as a ‘carte blanche’ for
legalese, since non-lawyers may need to, and in any case must, have access to the legislation
too. As audiences become more specialized and more educated in technical areas, they expect
texts that are targeted to their particular needs. Moreover, since accessibility of legislation is
directly linked to Bingham’s rule of law, passing inaccessible legislation under the feeble
excuse that its primary audience possesses legal sophistication is not easily acceptable. And
so there is an argument for either the continued use of legal terminology or for the provision
of a definition of the new plain language equivalent referring to the legal term used until now.
But how ‘plain’ must legislation be? Even within the ‘Heather Cole’ persona there is plenty
of diversity. There is a given commonality in the lack of legal training, but the sophistication,
2 Misconceptions in Legislative Quality 34

general and legal, of Heather Coles can range from a fiercely intelligent and generally
sophisticated user to a rather naïve, perhaps illiterate, and even intellectually challenged
individual. Which of those Heather Coles is the legislation speaking to? It certainly is not the
commonly described as ‘the average man on the street’. To start with, there are also women
on our streets, and they are users of legislation too. And then, why are the above or below
averages amongst us excluded from legislative communication? Since effectiveness is the goal
of legislative texts, should legislation not speak to each and every user who falls within the
subjects of the policy solution expressed by this specific legislative text? This includes the
above average, the average, and the below average people.
This is a rather revolutionary innovation. Identifying the users of legislation has led to not
one but two earthquakes in legislative studies: yes, the law does not speak to lawyers alone;
but the law does not speak to the traditional plain language ‘average man’. If applied in
practice, this new knowledge will change the way in which legislation is drafted. First,
legislative language can no longer be gauged at legal and regulatory professionals. Although
great advances have already taken place, legislation now tends to be pitched to ‘Mark Green’:
further simplification to the benefit of ‘Heather Cole’ needs to take place with immediate
effect. The Office of Parliamentary Counsel are working on this: for example, the term ‘long
title’ referring to the provision starting with ‘An Act to…’ is now replaced by the term
‘introductory text’ as standard in the tables of arrangement found on all Acts in
www.legislation.gov.uk. Similarly, there is talk of switching from ‘commencement’ to ‘start
date’, as user testing has shown that commencement is puzzling to non-lawyers. The Guidance
to drafting legislation reflects the UK government’s commitment to legislating in a user
friendly manner.
But more can be done. It is time to look at legislation with an innovative lens in order to
identify initiatives that can address its inherent limits.

2.3.5.1 Alternatives: Delimit the Limits

Having established the concept of effectiveness as synonymous to good legislation, and the
new holistic mandate of plain language in legislation, and armed with the new empirical data
offered by TNA and OPC, let us discuss further possibilities. I have identified three blue sky
mechanisms for better law. They respond to the limits of legislation: the layered structure
promotes a three tier structure for legislative texts each addressed to each of the three user
groups; the typography inspired presentation and layout responds to the need to bring to light
the main regulatory messages in legislation; and the interactive electronic statute book
highlights the interconnectivity between legislative texts within the statute book as a whole.

a) The layered approach to structure

Currently legislative texts are structured in application to Lord Thring’s Five Rules of Drafting
(Thring 1902) that offers precedence to provisions declaring the law versus provisions relating
to the administration of the law; to simpler versus the more complex proposition; and to
principal versus subordinate provisions. Exceptional, temporary, and provisions relating to the
repeal of Acts, and procedure and matters of detail should be set apart. But there is much scope
for blue sky innovation by use of the layered approach. The rationale behind the modern
approach lies with the logical sequence of provisions within the text, which reflects logic, and
philosophical and linguistic approaches to language and thought. This basis has now been
H. Xanthaki 35

overcome by the crucial evidence on the three user groups for legislation. Heather Cole, Mark
Greene, and Jane Booker are diverse users that require diverse pitches of the legislative text.
Speaking to all three of them at the same time is a rather complex, for some impossible, task.
Introducing three versions of the same legislative text is a possibility but it is a recipe for
disaster on such a diverse range of grounds, moral, ethical, constitutional, practical: rule of
law, issues of interpretation between versions, identifying which version corresponds to each
user, using that version as opposed to the one selected by the user, who subjects each user to
their corresponding persona, ethical and moral consequences of the application of a diverse
version for each user. And the parallel existence of three different texts could be counter-
productive: users currently choose to use the complex but official legislative text over any of
the many interpretation aids offered by government. If the plethora of attractive user friendly
manuals and policy documents are shunned in favour of legislative texts, what makes it
probable that users will go to the simple Heather Cole text as opposed to the legal Jane Booker
one that reflects users’ perception of legislation? And so remaining with a single text is really
the only option. But this is exactly what has imprisoned legislative drafters in the struggle for
simplicity within legislative texts.
It is now possible to see that each user group has its individual requirements for legislative
information that are distinct from those of the other user groups. Identifying the needs for
legislative information for each user group at a provision, rather than text, level would allow
drafters to imitate oral communication, and pitch the legislative text to specific abilities and
requirements. Drafters of legislative texts can now begin to think what regulatory or legal
message is relevant to each group, and structure the text accordingly.
The layered approach promotes the division of legislation into three parts, corresponding
to each of the three profiles of legislative users. Part 1 can speak to lay persons: the content is
limited to the main regulatory messages, thus conveying the essence of law reform attempted
by the legislation, focusing gravely on the information that lay persons need in order to become
aware of a new regulation, to comply with new obligations, or to enjoy new rights. 9 Part 2 can
speak to non-legally trained professionals who use the legislation in the course of their
employment. Here one can see scope for further detail in the regulatory messages introduced,
and for language that is balanced [technical, yet approachable to the professionals in question].
Part 3 of the legislation can then deal with issues of legislative interpretation, issues of
procedure, and issues of application, in a language that is complex but not quite legalese, as
there is nothing to prevent all groups from reading all parts.
The layered approach is revolutionary, as it shifts the criterion for legislative structure from
the content and nature of provisions to the profile of the users. It switches on a user-centred
structure, thus promoting both a link between policy and its effecting legislative text but also
enhancing and personalising the channel of communication between drafters and users. And
it applies and reflects the modern doctrine of contextualism in language and philosophy. But
it cannot be viewed as a complete departure from tradition, as it continues to apply Lord
Thring’s five rules. By requiring that Part 1 includes the primary regulatory message, it
promotes Lord Thring’s rules that give precedence to the simpler proposition. And by
structuring legislation into three parts, the layered approach complies with the other Thing
rules that require division of provisions declaring the law [in Part 1 or 2] with provisions
administrating the law [in Part 2 or 3 accordingly]; that principal provisions should be
separated from subordinate [in Parts 1 and 2]; that exceptional, temporary, and provisions
relating to the repeal of Acts should be separated from the other enactments, and placed by

9
Cf. also Chap. 13 in this volume.
2 Misconceptions in Legislative Quality 36

themselves under separate headings [in Part 3]; and that procedure and matters of detail should
be set apart by themselves [either in Part 3 of the layered approach, or in a Schedule].
The layered approach seems to be one of the promising initiatives in the field of legislation.
But there are three points that need to be clarified. First, the layered approach may, but will
not necessarily, lead to a partial, fragmented, or incomplete legislative communication to
Heather Cole. There is no doubt that an erroneous application of the approach could result to
that. But the placement of the main messages in Part 1 per se must be seen as an added bonus
to lay users compared with the current state of affairs: in the layered approach the now
frequently elusive main regulatory message will be easily identified, will be brought forward
in a pronounced place at the beginning of the legislative text, and will be expressed in a
language that is accessible to lay users. Compared to the current state of affairs, where the
main message is communicated somewhere within the legislative text and is expressed in the
layered approach’s Part 2 or 3 language, this is certainly an improvement. And of course, there
is nothing preventing Heather Cole from reading the rest of the text: in fact, an inviting Part 1
can only encourage Heather Cole to keep reading, whilst offering her a clear context within
which her understanding of complex and detailed messages can only be enhanced.
Second, although Part 1 carrying the main regulatory message is distinctly different from
Parts 2 and 3, it may be unclear what really distinguishes between Part 2 data and Part 3 data:
both Mark Green and Jane Booker are able to handle complexity and technicality of legislative
data. However, they do not both require the same data, as demonstrated by their motives when
using www.legislation.gov.uk: Mark Green is interested in answers that allow him to perform
his professional but non-legal duties, whereas Jane Booker seeks legal information. As a result,
what Mark Green needs is a clear understanding of substantive and procedural requirements
imposed by the legislation, whereas Jane Booker seeks deeper statutory interpretation often
coupled with a holistic view of the statute book. As a result, Part 2 of the layered approach
involves answers to questions such as who must do what by when, and what happens if they
don’t. Part 3 will delve deeper into intricate distinctions and possible exceptions that relate to
statutory interpretation and interconnections between legislative texts within the statute book.
There are two caveats here. One, Mark Green must still read the text as a whole. And Part 3
cannot be viewed as a mere shell of definitions, repeals, and consequential amendments: this
would deprive the readers from at least part of the benefits of the layered approach.
Third, it would be inappropriate to consider that the simplification serviced by the layered
approach would result to an abolition of the need for explanatory materials for legislation. In
fact, as the layered approach results in an inherent fragmentation of data, it renders the use of
explanatory materials and notes reinstating the fluidity of information and the cross-
fertilisation between parts an ever so crucial requirement. The new style of explanatory notes
introduced by Good Law and showcased in the Armed Forces (Service Complaints and
Financial Assistance) Bill [HL] Explanatory Notes enhance the layered approach by
introducing a clear table of contents that is thematic rather than provision based, with
information on the policy and legal context of the Act, and with simple narratives on the main
regulatory messages for all three user groups.
Ultimately, the proof of the layered approach is in its application. User testing can prove
whether it works, which user group for, and how it can be amended or fine-tuned to serve users
better.
H. Xanthaki 37

b) Legislative image: presentation, layout, pictures

Looking now in the image of the legislative text, namely at the picture that the user receives
when looking at the text, it is necessary to distinguish between paper and electronic. It is
noteworthy that in New Zealand legislation is only published electronically: paper publication
ceased last year. In the UK I am not aware of government intent to abolish paper publication
or even the tradition of vellum.
Plain language has always advocated the need to rethink the layout of legislative texts. The
single font, the lack of adequate contrast between paper and text, the unique format are
elements of the current legislative image that prevent the user from identifying the important
aspects of the regulatory message thus reducing readability of legislative texts. Legislative
texts attempt to convey a ‘legislative story’ to the user, thus allowing them to identify and then
understand the underlying policy, the legislative choices made, and the rationale behind the
text. This offers them the ability to read and interpret the text in context, thus making
accessibility easier and more secure.
The importance of layout has been the main motivation behind the change of legislative
layout in the UK in 2001. The current layout shows more white space and a slight change of
font coupled with shorter sections and sentences; structure in parts and sections, headings, and
the new table of contents [previously known as the table of arrangements] are all tools that
promote clearer layout for the purposes of enhancing readability. Specific demonstrations of
the modern layout are observed in a number of Acts: the ‘step by step’ approach to setting out
a series of complex rules in section 91 of the Income Tax Act 2007; the tables in section 181
of the Finance Act 2013; the headings for subsections in section 2 of the National Insurance
Contributions Act 2014 (Rogers 2015: 56).
However, there is plenty of scope for further progress. Layout is now at the forefront of
practitioners’ agenda. And quite rightly so. It has been overlooked and there is great scope for
change. However, layout alone cannot respond to a complex text, to a complex regulatory
message, or indeed to a complex policy. It will contribute to simplification but with the aid of
additional visual tools.
One of those tools that have been ignored by even the most visionary of legislative
academics and practitioners is the use of image in legislation. Images have been used in
legislation that introduces national flags, traffic signs, or planning regulations. But the
relationship between picture and legislation has not been explored fully. The visual arts could
play a significant role here: there is nothing more direct, relevant to a wide range of users, and
time resistant than Cain swinging his club above the prostrate Abel in Titian’s painting in Santa
Maria della Salute in Venice. The visual representations of themes relating to wrongdoing are
so emotionally charged and the characters shown in such magnification that, combined with
beauty and other aesthetic values, picture has had tremendous impact on the viewer.
Perhaps the inclusion of images in legislation can enhance the quality of communication.
An example could be drawn from criminal provisions. The picture accompanying the
legislation in the form of a Schedule may show:

• what behaviour is to be condemned (show the action; and specify if the person
knows that this is bad, suspects that this is bad, or is ignorant of the badness of
the behaviour); and
• that this is an offence (for example show a stop sign or show societal
disapproval); and
• that it carries a sanction (for example show the penalty and its adverse effect).
 2 Misconceptions in Legislative Quality 38

The use of typographical and visual aids in legislation can enhance readability immensely.
They can address textual limitations and can take the user further by banishing the barriers of
written textual communication. User testing is the only way to assess if and how useful they
are. But academic research, indeed inter-disciplinary academic research, is the only forum for
analysis at a theoretical level first, and then in application to actual legislation.

c) The statute book as a whole

Reforming the structure and layout of individual legislative texts may bear little fruit without
changes in the statute book as a whole. Addressing the issue of legislative volume that
enhances complexity has been at the forefront of the agendas of the last two governments as
the epicentre of regulatory quality. The volume of legislation came under review in 2003. The
Better Regulation Task Force’s ‘Principles of Good Regulation’ linked better regulation with
less legislation, and offered a number of regulatory alternatives: do nothing; advertising
campaigns and education; using the market; financial incentives; self-regulation and voluntary
codes of practice; and prescriptive regulation. In ‘The Coalition: our programme for
government’ the previous government undertook to cut red tape by introducing a ‘one-in, one-
out’ rule whereby no new regulation is brought in without other regulation being cut by a
greater amount; and to impose sunset clauses on regulations; and to give the public the
opportunity to challenge the worst regulations. Such was the importance attributed to
legislative volume that the Prime Minister in his letter of 6 April 2011 to all Cabinet Ministers
declared:

‘I want us to be the first Government in modern history to leave office having reduced
the overall burden of regulation, rather than increasing it.’

In order to achieve this aim, the UK government went one step further and introduced a
one-in two-out approach. It undertook to use regulation for the achievement of its policy
objectives only where non-regulatory approaches cannot lead to satisfactory outcomes; cost
benefits analysis demonstrates a clear margin of superiority of regulation to alternative, self-
regulatory, or non-regulatory approaches; or the regulation and the enforcement framework
can be implemented in a fashion which is demonstrably proportionate; accountable; consistent;
transparent and targeted. The number of Acts passed in 2012 was only 20 with a total number
of pages of 1,886: this was a new low after the peak of the late 1990s and early 2000s. But,
whilst the number of Acts has decreased since the 1980s, the mean average number of pages
per Act has increased significantly, from 37 and 47 pages during the 1980s and 1990s
respectively, to 85 in the past decade; if one compares these numbers with the 1950s when the
average was 16, a trend of fewer but longer Acts becomes evident. One could contribute this
increase to plain language drafting and to the increasing amounts of white space and bigger
margins leading to 20% fewer words on a page. However, there is a crucial contributing factor:
over the last 30-40 years the number of Statutory Instruments has steadily increased (Cracknell
and Clements 2012: 2). And so the volume of legislation, including primary and delegated,
seems to be fighting its ground in practice.
Nonetheless, the UK has been very active in the field of regulatory reform. This is
evidenced by a recent OECD Review, which pronounces the regulatory reforms in the UK as
impressive. 10 Points of excellence include the effective balance between policy breadth and

10
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H. Xanthaki 39

the stock and the flow of regulation; and the extensive application of EU’s Better Regulation
initiatives in the UK.
But of course innovations to the statute book do not end with legislative volume. Blue sky
proposals, which in this case may be put to effect much quicker than one might expect, include
the current work of The National Archives. John Sheridan leads current thinking both at the
theoretical level of viewing the statute book as a collection of big data, and at the application
level of presenting a prototype of a radically reformed screen presenting legislation at
www.legislation.gov.uk. The Big Data in Law project, led by J. Sheridan, D. Howarth, and H.
Xanthaki, revolutionized the way in which the statute book is viewed and led to big data
applications and capabilities to UK legislation as a coherent, interrelated, and up to date whole.
The project created a search mechanism for researchers allowing them to instigate research on
legislation as a body: from the census that allows counting for example the number of ‘shall’
in UK legislation throughout the years to the introduction of methodology tools that provide
empirical data on aspects of the statute book or the whole of the statute book. This entirely
new and free resource for the research community offers pre-packaged analyses of the data,
new open data from closed data, and creates the capability of identifying pattern language for
legislation, which would encapsulate commonly occurring legislative solutions to commonly
occurring problems thus facilitating legislative communication. The project, which has just
concluded, enhances user [in this case researchers’] understanding of the interrelations and
interconnections between legislative texts, within fields of law, and across fields of law.
The project feeds into the great efforts led by The National Archives to review the way in
which legislation is ‘served’ to users by offering unprecedented capabilities of identifying
relevant legislative texts, such as delegated legislation, cross referenced texts, definitions of
terms used in a legislative text, and, in the long term, even case-law clarifying or applying the
text to cases. There are already two prototypes of the new screen for legislation. Both have
been tested in user testing undertaken by BunnyFoot and including iris trackers as a means of
assessing how long a user’s eye spends in each part of the text, where the eye is searching for
further information and where on the screen, and where the user fails to understand the text or
the cross reference completely. This work is of profound importance. What is missing for the
purposes of legislative readability is context, and this is what the new screen can provide. This,
along with the new format of explanatory notes, can finally offer the user an accurate picture
of the labyrinth of legislative data in all their complexity and cross-wiring. Would this facilitate
the user? Of course it will: it will depict an accurate image of legislative regulation on the topic
searched, thus demonstrating if clear answers can be found or if it is time for the user to accept
that statutory interpretation by a trained legal professional is what is really needed in that case.

2.4 Conclusions

The hypothesis of this paper was that legislative quality, and in consequence legislative
drafting, is not about words and language. An enlightened approach to legislative drafting
proposes that legislative quality is effectiveness of the legislative provision, which is measured
by means of the text’s ability to produce the desired regulatory results. The paper began with
the description of the traditional concept of legislative quality as a means of setting the baseline
for debate. The finding of this analysis was that current legislative debate focuses on textual or
stylistic characteristics of the legislative text. But this framework is based on the misconception
that legislative quality is bound by legislative conventions.
2 Misconceptions in Legislative Quality 40

As phronetic legislative drafting is infertile ground for rules leading consistently to

legislative quality, the paper tackled the second misconception, namely that legislative quality
rests in a vacuum. As legislation is a tool for regulation, legislative quality is not an orphan
phenomenon. It is part of quality at the legislative and policy levels.
The fluidity of its parameters and its interconnection to law and policy can lead to a third
misconception, namely that legislative quality is somehow unachievable or undefinable. The
paper defined legislative quality as effectiveness, namely the capacity of the legislative to, with
the synergy of the other actors in the policy process, to produce the desired regulatory results.
The paper went on to identify the fourth misconception of legislative quality, namely that
effectiveness always lead to it. Apart from the phronetic nature of effectiveness, the paper
identified inherent limits of legislation as a product. These are legislation’s interconnection and
reliance to regulation, the limits of legislation as written communication, and the intrinsic
aversion of users to legislative texts.
This analysis led to the identification of the fifth misconception of legislative quality,
namely that, in view of the unsurpassable limits of legislative texts, legislative quality should
not be pursued further. Tools for further enhancement of legislative quality are the layered
structure of legislative texts, the use of image in legislative texts, and the restructuring of the
statute book as a whole.
It is hoped that this paper can contribute further to the continuing debate for legislative
quality.

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Law Review 34: 1229–1257.
Voermans, W. 2009. Concern about the Quality of EU Legislation: What Kind of Problem, by What
Kind of Standards? Erasmus Law Review 2(1): 59–95.
Weatherhill, S. 2007. The challenge of better regulation” in Better Regulation, ed. S. Weatherhill, 1–19.
Oxford and Portland: Hart.
Xanthaki, H. 2008. On transferability of legislative solutions: the functionality test. In Drafting
Legislation: A Modern Approach – in Memoriam of Sir William Dale, eds. C. Stefanou and H.
Xanthaki, 1–18. Aldershot: Ashgate-Dartmouth.
Xanthaki, H. 2010. Drafting manuals and quality in legislation: positive contribution towards certainty
in the law or impediment to the necessity for dynamism of rules? Legisprudence 4: 111–128.
Xanthaki, H. 2011a. Duncan Berry: A true visionary of training in legislative drafting. The Loophole 18:
18–26.
Xanthaki, H. 2011b. Quality of legislation: an achievable universal concept or a utopian pursuit? In
Quality of Legislation, ed. M.T. de Almeida, 75–85. Baden-Baden: Nomos.
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Chapter 3
Rationality in Criminal Law Making. Rational Decision
Making in a Complex Socio-Legislative Process

José Luis Díez-Ripollés *

Abstract Law making as a procedure of rational decision-making deserves to become a preferential

research field in criminal justice policy. The evolution of criminal legislation throughout the last decades
shows how strongly influenced legislative decisions are by opportunistic, populist and shortsighted
public demands or political interests. Any intention to build patterns of rational decision law making in
criminal justice policy requires a deep knowledge of the sociological and legal process that leads to take
legislative decisions, and of the social actors and institutions that are decisive along the way. The
differentiation of the legislative process into three stages, pre-legislative, parliamentarian, and
evaluative, each one having various internal divisions, has already proved its analytical capability. Now,
we are able to build a pattern of rational criminal law making. The current paper brings forward a revised
version of a model first proposed by Atienza that allows us to identify five standards of rationality:
ethical, teleological, pragmatic, systematic and linguistic, as well as a transversal dimension. All these
components should get access in a differentiated way to the varied phases and stages of the legislative
process by means of political actors and policy makers. The paper subsequently carries out a more
precise analysis of the principles building ethical rationality in criminal law making, and of the criterion
for solving discrepancies about the content of further rationalities. A critical analysis of the main topics
of procedural and substantive constitutional review of criminal law making constitutes the final section
of the paper.
Keywords Criminal law making • Legislative rationality • Constitutional review of legislation •
Standards of rational criminal law making

3.1 Introduction

The scarce attention paid by legal research to law making and the displacement of scholarly
efforts to judicial law enforcement is a long-lasting and stubborn attitude, the justification of
which does not match the outstanding significance directly attributable (attributed) to law as
an instrument for fostering social change in contemporary societies.
Specifically, the evolution of criminal legislation throughout the last decades shows how
strongly influenced legislative decisions are by opportunistic, populist and shortsighted public
demands or political interests. Therefore, law making as a procedure of rational decision-

J.L. Díez-Ripollés ()

Universidad de Málaga, Facultad de Derecho │ Instituto Andaluz de Criminología
Campus de Teatinos, E-29071 Málaga (Spain)
e-mail: [email protected]*
3 Rationality in Criminal Lawmaking 44

making deserves to become a preeminent (preferential) research field in criminal justice policy
and criminology.
Proposing a criminal law-making pattern in accordance with rational decision-making
theory is the immediate goal of this paper, which follows previous and more comprehensive
studies of my own on the subject. 1 It is not my intention to work out an analytical model of
rational legislation but a model of rational law making, more precisely, of rational criminal law
making, although both endeavors are obviously strongly interrelated. In order to achieve this
goal we need to adopt two complementary perspectives.
The first one is a dynamic one, let us say, a sociological approach to the topic that
acknowledges the necessity of familiarity with the way laws really come to birth. The criminal
law-making procedure is a complex phenomenon, which comprises different phases, each of
them including a number of stages, and to know them well is a prerequisite for, among other
things, introducing effective prescriptive requirements at any of those procedural moments.
The second one is a prescriptive one, let us say, a normative approach to the issue. We must
elucidate and agree on a set of criteria, based on the rationality of decision-making and
pertinent for legislation, which must have easy access to ongoing criminal law-making process.
Furthermore, a convincing and appropriate disaggregation of principles and rules should take
place at each criterion level.
The last aim of our endeavor is to control the legitimacy of criminal legislation under
procedural and substantial standards. Consequently, any criminal law that clearly fails to
observe those requirements should become invalid; this raises a question about the role of
constitutional courts, specific parliamentary committees and the like, in such decisions.

3.2 The Dynamics of the Criminal Law-Making Process

Any intention to build patterns of rational decision law making in criminal justice policy
requires a deep knowledge of the sociological and legal process that leads to legislative
decisions, and of the social actors and institutions that are decisive along the way.
For analytical purposes, we will divide the legislative process into three phases. 2 The pre-
legislative phase starts with the assumption by the community of a current social dysfunction
on a matter with criminal implications, and ends once a draft bill is presented to parliament.
The parliamentarian phase encompasses the discussion and modification of the draft bill
through parliament until the passing of the law. The post-legislative phase, better called the
evaluation phase, begins with the enforcement of the law and finishes when community,
prominent social actors or policy makers feel the law, or part of it, does not match current social
needs any more. This conclusion will most probably encourage a new legislative process,
which allows us to characterize the legislative process as a circular or recurrent one.
It is useful at this point to make one or two further remarks. Despite common belief, the
parliamentarian phase is not the decisive one; in particular, some stages of the pre-legislative
phase can substantially determine the final legislative outcome. Moreover, not only do the

1
See Díez-Ripollés (2013a). References about the detachment of legislation processes from a model of
rational decision-making have regularly appeared since the 1990s. See Atienza (1992: 71), Floerecke
(1997: 354–355).
2
For advocates of a similar analytical structure, see among others, Atienza (1992: 68–71), Rodríguez
Mondragón (2000: 85–89), Soto Navarro (2003: 147–149), Becerra Muñoz (2013: 339 ff.).
J.L. Díez-Ripollés 45

previous phases strongly shape the following ones throughout the (current) legislative process,
but also all three phases receive feedback from each other either for future modification of the
law or for law making at large (Atienza 1992: 68).
Additionally, we must point out some methodological limits. First, the dynamics of
legislation described here primarily refer to criminal law-making processes and I do not intend
to generalize the description to other branches of law. Nevertheless, it is my opinion that the
process here outlined can be very useful in other legal contexts. Second, this analytical model
focuses on a certain kind of criminal legislation, the kind that attracts attention from the most
varied and influential social actors and from the public as a whole. Although community
interest on criminal matters has been growing for decades and covers more and more topics,
there are still some fields of criminal law, which conform to strict technical-juridical reasons
and remain immune to lay demands. Anyhow, I consider the proposed model applicable largely
to this other kind of criminal legislation.

3.2.1 The Pre-legislative Phase

We can fully comprehend this phase if we see it as a sequence of five successive stages: social
dysfunction; social unease; public opinion; program of action; and draft bill. 3 Two significant
features serve to distinguish broadly among these five stages: social actors who lead the
progress of the corresponding stage, and the varied degree of institutionalization of the
activities at every stage.
1.1. The assumption of a social dysfunction means that some social actors or policy makers
have succeeded in making credible to the community an incongruity between certain existing
socio-economic facts and the response, or lack of it, from the legal system. Additionally, in our
context this response will have to do with crime control interventions (Schneider 1987: 793;
Floerecke 1997: 70).
1.2. A social unease in relation to that perceived social dysfunction must subsequently add
on. It entails a cognitive and emotional stabilization in the community of a worry about that
unsolved social dysfunction. In crime control matters the consolidation of this uneasiness
frequently has a lot to do with the dissemination of two relevant independent variables; the
concern about crime and the fear of crime 4.
1.3. The social unease, described above, needs to achieve respectability and a more precise
frame in order to attract the attention of prominent social actors and policy makers, and to
influence their agenda. This occurs when the media focus on the issue and turn a vague social
concern into a clearly outlined and important social problem, and take up a stance about it. At
this point, one can assume the existence of a public opinion on a pressing social problem; this
does not mean, however, that it accurately reflects the opinion of the public. 5
1.4. Once the social problem has been identified, different lobbies present themselves as
having the capability to implement a program of action able to solve or reduce the problem. It
is useful to differentiate among expert groups, media groups and layperson groups, because

3
Schneider (1987: 792–793) first proposed this classification for criminal law making. This is a common
frame of analysis in public policies theory. See, for all, Subirats, Knoepfel, Larrue and Varone (2008).
4
On differences between the contents of concern and fear of crime, as well as other related concepts,
see Skogan (1993:131–139), Hale (1996: 84–94).
5
On agenda setting and public opinion, see the classical studies by Cobb and Elder (1983), Edelmann
(1988). On the nature of public opinion, Zimmerling (1993: 97), Soto Navarro (2003: 84–104).
3 Rationality in Criminal Lawmaking 46

their stance on any social problem with crime control implications has basic and aprioristic
distinctions. The over-representation of layperson pressure groups, specifically victims’
pressure groups and, to a lesser extent, media pressure groups is a distinctive and worrying
feature of current criminal justice policy. 6
1.5. Finally, mostly governmental, but occasionally political party, bureaucracies take the
lead on drawing up a draft bill, the contents of which should match the objectives and means
discussed and agreed on in the previous phase. Nevertheless, these bureaucracies retain a wide
field of discretion. Moreover, governmental bureaucracies have a bigger range of influence
than party bureaucracies due to the overriding role played by governments in planning criminal
legislation7. Where jurisdictions provide for the passing of criminal legislation by referendum,
layperson groups have a direct chance to draft criminal bills.

3.2.2 The Parliamentarian Phase

The main stages of the parliamentarian phase are the presentation of the draft bill to the
parliament and its admission, deliberation on it, and the passing of the law. All three stages
take place in the parliament. In bicameral systems, where the passing of any criminal law needs
the approval of two houses, the three stages are in some way replicated in both chambers.
2.1. Presentation of the draft bill to the parliament has two main features. A restricted
number of policy makers are entitled to bring forward legislative initiatives to the parliament,
and in criminal law initiatives this is often even more pertinent. Besides, governmental
proposals receive advantageous consideration in comparison to those initiatives born in party
parliamentary groups. In practice, this means an easier parliamentary procedure which results
in a considerably higher rate of success for governmental initiatives.8
2.2. Once amendments have been submitted, the parliamentary commission in charge of
considering all amendments, and the reporting committee usually established within the
parliamentary commission, are the main actors involved in deliberating on the draft bill. They
provide the opportunity to take into account new facts, points of view and alternatives. 9
Rationality requirements to the law-making decision should be mainly focused, at the
parliamentarian phase, on this stage.
2.3. The debate on the draft bill in plenary session before the final passing of the law does
not represent, for the most part, a significant stage for introducing rationality requirements, due

6
On the overrepresentation of victims’ pressure groups in criminal justice policy debate, among others,
Rubin (1999), Garland (2001), Zimring, Hawkins, Kamin (2001), Cerezo Domínguez (2010). On
lobbying in legislative processes, see Chap. 10 in this volume (Meßerschmidt 2018).
7
See the way of working of both bureaucracies in Hassemer, Steinert and Treiber (1978: 12–17),
Amelung (1980: 62–63, 67), López Garrido and Subirats, (1990: 46-48), Floerecke (1992: 45–52, 347–
351), Jiménez Aparicio (2004: 279–283), Ortiz de Urbina (2004: 423–438), Becerra Muñoz (2013: 337
ff.).
8
An analysis of these parliamentarian features in comparative law, in Becerra Muñoz (2013: 434–441).
Concerning Spanish legislative process, in López Garrido and Subirats (1990: 40–43), Cano Bueso
(1994: 211–212).
9
See different information and assessments concerning the usual course of this important
parliamentarian phase in different legal systems, in Amelung (1980: 66), López Garrido and Subirats
(1990: 43–46), Floerecke (1992: 348–354), Cano Bueso (1994: 213–221), Durán Alba and Redondo
García (1994: 239, 258–264), Becerra Muñoz (2013: 441–452). On the quality of the legislative debate,
see Chap. 9 in this volume.
J.L. Díez-Ripollés 47

to its inflexible configuration and restrictions on MP interventions. Nevertheless, the provision

of a qualified majority for passing criminal laws, in recognition of their importance, 10 has
proved to be a useful, but limited, tool for preventing opportunistic legislative decisions.
Beyond that, there is no guarantee of a more rational law-making procedure in the case that
two legislative chambers must successively conduct the complete parliamentarian process.

3.2.3 The Evaluation Phase

The evaluation of the enforcement of criminal laws offers a promising and unavoidable way to
improve criminal law making. It takes place once the law is in force 11 and has four sequential
aspects: the existence of a social interest in evaluation; the availability of the necessary human
and material resources; the methodological challenges; and the dissemination of results.
3.1. The activation of a social interest in evaluation requires some pre-conditions. Primarily
it demands a community willing and able to demand political accountability. It then requires
criminal laws with clearly established and feasible objectives so that a socio-scientific analysis
can reach relevant conclusions about their attainment. In addition, it requires social agents and
policy makers interested in promoting the evaluation of laws. 12 None of these requirements
should be taken for granted.
3.2. Subsequently, criminal law evaluations demand human and material resources. Human
resources are normally inadequate in legal systems where lawyers are ubiquitous but
criminologists are either scarce or not used to conduct research on the implementation of
legislation. Adequate material resources imply corresponding budget allocations and
professional and permanent facilities.
3.3. The capability to overcome methodological deficits usually attached to studies on this
field is another relevant aspect. An array of available statistical and other experimental data not
only on criminality but also on most social matters is essential. In addition, given that a real
experimental test on criminal legislation encounters serious obstacles, as many previous
empirical experiences and references as possible are welcome. 13
3.4. The correct dissemination of the results will ensure their serious consideration by
prominent policy makers. Scholarly or administrative jargon should be avoided, as should
contemptuous statements on policy makers’ or professionals’ actions; recommendations should
always be included (and alternatives if necessary); and public access to the results of the
evaluation should be guaranteed (Barberet 2001: 119–120).

3.3 A Pattern of Rational Criminal Law Making

10
This is the case in Spanish legislation. See Díez-Ripollés (2016: 56).
11
On retrospective assessments of enforced laws, see Osés Abando (1994: 282–287), Barberet (2001:
110–111), Rodríguez Fernández (2016: 87–93), Nieto Martín (2016: 368–371).
12
Emphasizing some of these aspects, see Osés Abando (1994: 279 ff.), Barberet (2001: 110–120),
Larrauri (2001: 99–100, 105), Zimring, Hawkins and Kamin (2001: 220–222).
13
See different contributions on this issue in Díez-Ripollés and Cerezo (2001).
3 Rationality in Criminal Lawmaking 48

Once we know how the law making process factually works and what the most decisive stages
are it is time to move to the second perspective, i.e. the building of a model of rational decision
law making.
In the first place, we need a cogent and manageable concept of law rationality. A rational
legislative decision on issues concerning social control, and crime control in particular, is one
that pays due attention to all, or the most relevant, facts of the social and legal context on which
such decision intends to influence. This is, of course, a simple and operational definition of a
complex, mostly philosophical, subject, but it is enough for our purposes.14
If we ponder more deeply on the topic this concept of rationality leads us to a multilevel
scenario with five accumulating requirements, each of them covering particular aspects, which
must be taken into account in any rational legislative decision. These five levels are the ethical,
teleological, pragmatic, systematic and linguistic. In addition to them, a transversal dimension
of efficiency, focused on a cost-benefit approach, ensures compatibility between the demands
of the various levels of rationality, and between the diverse elements contained within any
standard of rationality.
This pattern of law rationality is a revised version of a model first proposed by Atienza
(1997) but in both models the various standards of rationality are analysed in reverse order.
The reason for doing this is that establishing a rational procedure for making criminal laws is
my main goal, rather than building a tool for analyzing the rationality of existing criminal
laws. 15 Main differences between my model and that of Atienza concern the method for
identifying the elements of ethical rationality, the contents of the teleological rationality, and
the distribution of utilitarian elements between teleological and pragmatic rationalities (Díez-
Ripollés 2013: 91–98).

3.3.1 Five Standards of Legislative Rationality

3.3.1.1 Ethical Rationality

Ethical rationality makes sure that the legislative decision matches our common beliefs, i.e.
those principles and values that are essential for community life under current historical and
cultural conditions, and the justification of which we rarely argue about. It has to do with our
outlook on life and our worldview 16. These values and principles are specifically disseminated
in the different fields of community life and therefore in national legal systems, more precisely
in criminal law.
Ethical rationality requires that the contents of any criminal legislative decision should pay
attention to three sets of principles, which must determine the whole range of criminal
interventions. First, those principles regulating the identification of the legal interests that
criminal law must protect. Second, principles shaping individual responsibility in

14
More comprehensively, about a specific concept of rationality referred to legislation, Atienza (1997:
60–61, 77 ff.), as well as Chap. 8 (Sect. 8.1) in this volume (Atienza 2018). See also Marcilla Córdoba
(2000: 100–106; 2005: 251 ff.).
15
See supra the introduction to this paper (Sect. 3.1).
16
The concept of common beliefs here is strongly influenced by a Habermasian understanding of how
modern society is built upon two kinds of social integration; normative integration and systemic
integration. The first relies on a common normative background based on a shared lifeworld. See
Habermas (1987: 1994).
J.L. Díez-Ripollés 49

contemporary society, transferred in a more sophisticated way to the legal theory of crime,
which must adjudicate decisions on the criminal liability of those breaking criminal law. Third,
principles legitimating the kind of criminal sanctions applicable to criminal offenders.17
The democratic criterion also belongs to the level of ethical rationality. In real legislative
scenarios, this criterion is an unavoidable yardstick for solving controversies as to what exactly
is required on each level of rationality, because we cannot rely upon unanimous agreement on
this question. Widespread social acceptance of this criterion forms part of the ethical rationality
itself, and needs an adequate foundation.18

3.3.1.2 Teleological Rationality

A law will satisfy the demands of teleological rationality if the essential contents of the law are
established through open debate where any ideology, opinion and interest has the opportunity
to be expressed and argued in accordance with the deliberative principle of a democratic
society. 19
The goals to be achieved by the law, and submitted to public discussion embrace, among
other aspects, the identification of the legal interest protected by the law and its range of
protection, the scope of criminal responsibility, and the choice of criminal sanctions and their
extent.
The achievement of as many compromises as possible among competing public and private
rationales and interests is desirable but in the last resort majority rule, the democratic criterion,
will have the last word for solving disagreements. The result will reflect the ethical-political
understanding on, at least, the importance of the protected legal interest, the intensity of the
required law abidance and the negative consequences of non-compliance with the law.

3.3.1.3 Pragmatic Rationality

Pragmatic rationality ensures the effectiveness and efficacy of the planned new statute. It tries
to adjust the aims traced by the teleological rationality to the real prospects of the intended
crime control intervention.
In principle, a criminal statute can be said to have effectiveness if it is enforceable both as a
behavior directive for law-abiding citizens, and as a normative expectation through legal
coercion for offenders. 20
The efficacy of the law can be predicted if, taking into account the current socio-legal
conditions, it is able to accomplish its objectives either by spontaneous or by coercive

17
I lay out the contents of these three sets of principles later in this paper.
18
See later in this paper.
19
I do not mean that this open and comprehensive debate should strictly follow the requirements of a
Habermasian-Alexyan rational discourse, as Atienza (2018) points out critically in this volume (Chap.
8, Sect. 8.4). Actually, this is not within the reach of legislative processes where particular interests and
strategies are of paramount importance and the democratic criterion plays such a significant role for
solving controversies. Nevertheless, the necessity of promoting public debates (as much rational and
deliberative as possible) must be a constituent element of teleological rationality. See Habermas (1994:
187–195, 203–207 and 340–348) for a recognition of the necessary confrontation between moral and
ethical grounds, particular interests and pragmatic reasons at the time of the democratic and deliberative
setting of the political will.
20
Calsamiglia (1993: 171–172) correctly distinguishes these two aspects of law making effectiveness.
3 Rationality in Criminal Lawmaking 50

compliance. Efficacy deals not only with the ability of the law to protect the legal interest but
also to do that under the agreed limits on responsibility and sanctions. 21

3.3.1.4 Systematic Rationality

The concept of systematic rationality is well-known to jurists and lawyers as long as it

relates to an important standard for the judicial interpretation of law, but it has some
characteristics concerning law-making, which should prevent from hastily equating the
adjudicative with the legislative use of the concept.
Substantially, systematic rationality ensures that the aims and contents of the new criminal
statute consistently integrate into the existing legal system, increasing its coherence or, at least,
not giving rise to legal contradictions, loopholes or other similar systematic shortcomings
(Atienza 1997: 27–36).
Additionally, systematic rationality has an instrumental or procedural content, which makes
sure that the legislative process has correctly observed the formal requirements and sequential
stages legally prescribed for criminal legislative decisions in the corresponding legal system. 22

3.3.1.5 Linguistic Rationality

Any criminal law is, ultimately, a behavior directive, which entails that it must reach the public,
and send a clear and accessible message to it. No law will be either complied with or enforced
if the addressees cannot know and understand its provisions. 23
Some juridical circles directly involved in legislation processes think that systematic and
linguistic rationality are the only requirements a rational criminal law making model must
fulfil. This minimalist approach argues that additional contents, such as those mentioned in
ethical, teleological and pragmatic rationalities, must stand apart as long as they belong to
political argumentation, which proceeds in accordance with other standards (Salvador Coderch
1989: 19, 28; Sáinz Moreno 1994: 20–22; Tudela Aranda 1994: 83–85, 86–89, among others).
Let me make a couple of remarks on that approach. First, political argumentation can and must
fully display its grounds and strategies within the teleological rationality, where any political
interest or strategy has to contend with other interests, values or aims. Second, it is illusive to
assume that arguments already debated in former rationalities do not influence the way
systematic and linguistic rationalities are shaped; the contention for a sheer technical-juridical
analysis in the latter rationalities ignores the fact that substantial aspects of those rationalities
depend on decisions adopted previously. 24
In an opposite sense, another minimalist approach states that only contents of ethical
rationality, formulated in negative terms, must frame criminal legislative decisions. More
precisely that ethical restrictions, based on fundamental rights and civil liberties, about when

21
For a clear distinction between effectiveness and efficacy concerning criminal legislation issues, see
Hassemer, Steinert and Treiber (1978: 20). See a recent and detailed analysis of the effectiveness,
efficacy and efficiency of the 2003/2004 Spanish criminal legislation against intimate partner violence
in Díez-Ripollés, Cerezo and Benítez-Jiménez (2017).
22
Atienza has recently stressed this second content of systematic rationality. See Chap. 8 (Sect. 8.2 and
8.4) in this volume (Atienza 2018).
23
More specifically, about contents of both systematic and linguistic rationality, see García-Escudero
Márquez (2010: 49 ff.).
24
See additional critiques in Zapatero Gómez (1994: 788–789), Atienza (1997: 33–36) and Marcilla
Córdoba (2000: 107–109; 2005: 279–286).
J.L. Díez-Ripollés 51

and how to prohibit, punish and prosecute are the only acceptable limits to criminal law making
(Ferrajoli 1990: 347 ff., 460 ff., 591 ff., 908 ff.). This standpoint, strong influenced by the so-
called minimum criminal law, and even by abolitionist trends on criminal law, means
completely denunciating legislative rationality not only because it forgoes additional levels of
rationality, but because ethical rationality confines itself to saying what the lawmaker must not
decide.

3.3.2 Efficiency as a Transversal Dimension

Efficiency as a cost-benefit consideration is not a new standard of rationality but a transversal

dimension, which regulates conflicts within and between rationalities (Atienza 1997: 92–94). 25
Each rationality has a number of elements, which tally with the plurality of rational demands
included in every rationality level. Efficiency means that the priority given to certain elements,
detrimental to others, will not go beyond a cost-benefit analysis.
The same occurs with the interaction between rationalities. As a matter of principle,
previous levels of rationality prevail over later ones; thus, ethical rationality prevails over all
of the others, teleological rationality over pragmatic, systematic and linguistic rationality, and
so on. However, this rule has a very short scope because efficiency demands an optimal
weighting among all the rationalities, so that more than the essential elements of each one
should be preserved at any time.
At this point in the paper, it might be helpful to draw the reader’s attention to the similarities
of the five standards of legislative rationality with the canons of legal interpretation. Following
the sequence ordinarily used at the time of interpreting a legal provision, linguistic rationality
is very close to the grammatical or textual canon, and systematic rationality confronts similar
challenges to those of the systematic canon. Pragmatic rationality corresponds to some extent
to the teleological canon, and teleological rationality comfortably inserts itself into the same
context as the historical or legislator’s intent canon. Finally, ethical rationality partially
coincides with the canon of constitutional compliance.
This overlapping is not surprising. Whereas the diverse standards of legislative rationality
set the conditions for the future contents of the law, the canons of legal interpretation establish
how to determine the contents of legal provisions. In fact, that incomplete coincidence
reinforces the consistency of the legal system as a whole. Nevertheless, we should not
encourage this parallelism since it can be used to conceal the shortcomings of legislative
rationality through the prestige of long established methods of legal interpretation. It must be
the idea of coordination, instead of identification, which ought to rule the interaction between
law making and law application rationalities.26

3.4 Transfer of the Contents of Rational Criminal Law Making to the

Legislative Process

25
I fully agree with Atienza (2018, in this volume) that the concept of efficiency must not be understood
in economic terms, but as balancing, as an optimization of the elements included within every rationality,
as well as an optimization of all the rationalities’ contents (Chap. 8, Sect. 8.4).
26
See also some reflections on the relationship between judicial and legislative reasoning, in Calsamiglia
(1993: 170, 176–177), Atienza (1997: 97–99; and Chap. 8, Sect. 8.4 in this volume).
3 Rationality in Criminal Lawmaking 52

Now that we have identified the five standards of rationality that must observe any criminal
law making process, it is time to outline the differentiated way these rational contents should
access, by means of political actors and policy makers, the different phases and stages of the
legislative process.
At the first stages of the pre-legislative phase, teleological rationality, with all due respect
to ethical rationality, dominates the scene. The pragmatic, systematic and linguistic rationalities
will gain momentum so long as the pre-legislative phase moves forward. Thus, pragmatic
rationality makes an appearance when public opinion builds up and will be in the forefront
once expert groups shape a program of action, whereas the media and layperson groups will
not usually pay much attention to this level of rationality. The drawing up of the draft bill by
bureaucracies will require the consideration of all rationalities, but, since at this stage most
teleological issues will already be solved, the job will mainly concern the pragmatic, and
specifically, systematic and linguistic rationalities.
All five rationalities will be clearly present at the parliamentarian phase. The ethical and
teleological rationalities will come again to foreground in order to check if the pragmatic
analysis and the systematic and linguistic features of the draft bill match the goals of the
legislative initiative and respect the underlying values and principles. As a result,
contradictions will appear and we will more than ever need to take advantage of the efficiency
dimension.
There is no question about the leading role of pragmatic rationality in the evaluative phase;
effectiveness and efficacy of the statute are paramount guidelines at the time of its enforcement.
Nevertheless, a closer examination of the actual values and principles involved when enforcing
the law, a rethinking of the aims pursued, the failure to insert the new act into the legal system
as a whole, and unexpected difficulties encountered by the new statute to reach its addressees,
may lay the foundations for specific assessments of the other rationality standards.27

3.5 Some Additional Insights into Ethical Rationality

3.5.1 Principles Building Ethical Rationality

As already said, ethical rationality embraces three sets of principles commonly accepted within
our current society. In this section, I will try to identify those principles and summarize their
contents. Given that we are attributing to the constituents of ethical rationality a widespread
social recognition, we must be persuasive about the following principles associated with this
level of rationality. These principles should contribute to giving material and constructive
guidelines to the legislative process from the beginning; they should not confine themselves to
establishing aprioristic restrictions on the process. 28

27
See other analyses on the extent to which the different levels of rationality are present at the diverse
phases and stages of the legislative process in Atienza (1997: 69), Rodríguez Mondragón (2000: 85–89).
28
For a reluctant view on the positive contribution of these principles to the legislative process, in some
way or another, see Ferrajoli (1990: 347 ff., 460 ff., 591 ff., 908 ff.).), Atienza (1997: 39–40, 63).
J.L. Díez-Ripollés 53

Among the principles that regulate the identification of the legal interests to be protected by
criminal law, the harm principle is the first. 29 Crime control must focus on behaviors which
directly disturb conditions of social life and which, therefore, are socially harmful. Behaviors
that do not hinder the course of other citizens’ projects in life, or behaviours that merely create
disturbances inherent to normal societal interaction, are not considered. Ultimately, the
principle allows the fixing of limits of social tolerance in any given society. Strongly related to
this the principle of significant offence makes sure that criminal legislation only pays attention
to behaviors which seriously affect the basic conditions of social life, both because of the
importance of the legal interests involved and the seriousness of the offence. 30 This correlates
to the focusing of criminal law on the most serious threats to social life and its access to the
most serious sanctions to counteracting them.
The principle of public interest makes clear that behavior harmfulness refers to general
interests and not particular ones. This entails two requirements: first, criminal law concerns
social conflicts which transcend the conflict between parties and have the potential to put at
risk social order as a whole (Hassemer 1981: 25). Second, criminal law is socially impartial
and defines behavior harmfulness in relation to the needs of the public and not to the sole needs
of powerful social groups. The principle of factual accordance establishes an empirical
approach for identifying behavior harmfulness as well as public interest, and in the end for
building criminal legislation. Against magical, emotional, symbolic or populist analyses, our
societies have chosen a socio-empirical standpoint for tackling social problems, and policy
makers should remind the public of that, without taking advantage of its occasional
inconsistencies (Hassemer 1981: 19–26)
In order to prevent the social harms identified through the aforementioned principles,
criminal law takes up a stance which, though its general acceptance, is quite peculiar. Instead
of directly preventing behaviors harmful to protected legal interests through precautionary
measures, it prefers to wait for serious endangerment or the causation of harm and to ask then
for criminal liability of the responsible person. 31 Undoubtedly, this course of action has
preventive effects on future would-be harmful behaviors. Important for us is that this way of
proceeding demands a clear identification of those principles shaping individual responsibility
in contemporary society. 32
Among these principles, the principle of certainty requires that any citizen should have a
previous and precise knowledge of the circumstances under which their behavior could be
deemed criminal and of the subsequent consequences. This knowledge lays the foundations for
the accommodation of citizens’ conduct to legal expectations and, no less important, for
preventing arbitrariness from public authorities. This principle is widely recognized so that
even in non-democratic societies its disregard has not lasted long (Cerezo Mir 2008: 195–201).
The principle of offence-based liability sheds light on two irremovable conditions of legal
responsibility. The first condition states that adjudication of legal responsibility requires an
overt behavior, whereas any state of mind is irrelevant as far as it does not accompany an overt
action. This demand is in harmony with the aforementioned harm principle, which confines

29
See divergent foundations of the harm principle in criminal law, in Amelung (1972: 350 ff.), Ferrajoli
(1990: 466–482), Silva Sánchez (1992: 268–271).
30
Criminal law jurisprudence wrongly uses to relate this principle, under varied terms, either with the
nature or with the theories of punishment. See a good review in García Pérez (1997: 332–336).
31
See, more in depth, Hassemer (1999: 163–184).
32
As long as we try to identify principles based on common beliefs which are diffused throughout the
community, these sophisticated criminal liability principles should not substantially differ from those
ruling personal responsibility writ large in most diverse fields of social interaction.
3 Rationality in Criminal Lawmaking 54

criminal behavior to those actions directly affecting conditions of social life, and tallies with
secularized and pluralistic societies in which citizens’ inner adherence to legal norms can
neither be taken for granted nor imposed. The second one prevents crime control interventions
that go beyond punishing single criminal behaviors and that pursue crime-encouraging ways
of life and lifetime projects. The ethical aim of personal self-determination within a free society
is at odds with making citizens responsible for pursuing existential projects, no matter how
disturbing they can be.
The principle of attribution of responsibility collects the ethical criteria according to which
a single and outer behavior and, if necessary, the harmful result it has brought about, can be
charged to a person. The objective attribution demands that behavior and its result keep a
physical connection with that person, which the material law of causation usually establishes.
The subjective attribution adds to that physical connection a psychological one, making sure
that the behavior and result belong to the will of that person, be it as an intentional action or as
a negligent action. Consequently, no criminal responsibility exists when causation does not
exist or accident takes place. The principle of guilt demands more than an attribution of
responsibility. The person must be accountable for the motivational process that led him to
make the criminal decision and to put it into practice. Society is willing to excuse criminal
liability if, under socially acceptable conditions, it can be stated that someone was not mentally
able to stop the criminal decision, or that the decision was especially difficult to preclude.
Insanity, infancy, intoxication, duress and the like are defenses that account for that.
Finally, the jurisdiction principle changes the focus to the ethical consensus on the standards
governing the procedure to adjudicate criminal liability. Four of them are especially significant
(Montero Aroca 1997: 15–30, 86–89, 137–164), and the state monopoly on the adjudication of
criminal responsibility is the first: our communities reject any claim for solving crime offences
by the individuals or groups directly affected. What is ethically decisive is the aim of
subtracting the adjudication of responsibility from the “correlation of forces” between
perpetrators and victims, as well as making sure that the general interests of society are
observed in solving the conflict. The second one is the independence and impartiality of the
judicial body to such a degree that it does not depend on any other authority when making its
rulings and is itself no way involved in the conflict over which it is adjudicating. The third
standard refers to an adversarial procedure in the sense that all parties are able to bring forward
their diverging standpoints; this means a formal and precise indictment, the existence of two
confronting parties, and the equality of arms principle are all ethical demands. The last standard
is the bringing of empirical evidence, in other words that the adjudication of guilt and its extent
depends on a previous evidence-based activity, in order to respect the presumption of
innocence principle, and, secondly, that the obtaining of evidence follows current and socially
accepted ways of establishing material truth, notwithstanding the limitations inherent to
forensic procedures.
Crime control, through the penalties it imposes, provides for the most invasive interventions
against citizens that our democracies allow. The nature and severity of those penalties demand
an ethical consensus which goes beyond the ethical agreement on the previous two set of
principles. In other words, we need to make sure that the quality and magnitude of the social
effects intended by penalties do not transcend the socially agreed limits of exercise of power
by public authorities, so that crime interventions do not become an illegitimate restriction of
citizens’ right to self-determination (in greater detail, Díez-Ripollés 2013b) .
The principle of humanity states that the degree of personal intrusion of any penalty may
not surpass the limits imposed by the due respect to the personal dignity of the offender, a
principle that bears on both the nature of the penalty and on its enforcement. It is an
J.L. Díez-Ripollés 55

unconditional requirement, the result of which is that some criminal sanctions and some
enforcements of criminal sanction are ethically unacceptable, no matter how serious criminal
behavior was, how severe were the harms caused by that behavior, or how important are the
effects to be achieved by the penalty. 33
The theory-of-punishment-based teleological principle makes clear which aims are
ethically acceptable to pursue through criminal sanctions. More precisely, how far we are
prepared to go in producing socio-personal effects on citizens through crime control
enforcement in order to protect legal interests. It is not a question of identifying the most
effective or efficacious criminal sanction for obtaining criminal law abidance, because this
question belongs to later standards of legislative rationality once the ethically admissible goals
for criminal penalties have been established. The manifold contents of this principle have
shown a strong resilience throughout the Western tradition regardless of changes of emphasis
in accordance to different epochal sensibilities: retribution, specific deterrence, rehabilitation
or incapacitation of offenders, general deterrence, integrating prevention, and social order
reassertion.
The principle of proportionality expresses the ethical belief that the magnitude of the
penalty, that is, the affliction it will entail to the offender, must correspond to the harm caused
by the offence and the intensity of the criminal liability. This principle, which reinforces the
coherence of the criminal sanction principles with the other two sets of ethical principles, has
two layers. The first refers to the severity of the sanction provided for that kind of offence,
whereas the second reiterates the principle in relation to the specific penalty imposed on the
offender. 34 Finally, the public right-to-punish principle, in parallel with the state monopoly on
the adjudication of criminal responsibility, prevents individuals or groups directly affected by
the crime from determining the criminal sanction or managing its enforcement (Montero Aroca
1997: 17–18). Again, the intention to make the determination of the kind and magnitude of the
penalty independent of the “correlation of forces” between perpetrators and victims as well as
to preserve the utility of criminal sanctions for achieving public goals are behind this ethical
demand. This principle currently faces challenges, however, due to the prevalence of victims’
interests in contemporary criminal justice policy (Garland 2001).

3.5.2 The Democratic Criterion

The consensus on the principles and values of ethical rationality does not equally apply to other
rationalities. These rationalities are not built on common beliefs and, as a rule, controversies
will appear among social actors and policy makers at the time of making decisions. Therefore,
we need a widely and socially accepted criterion for solving persisting disputes and this
criterion should obtain an ethical legitimation precisely because it is rooted in our common
beliefs.
Criteria based on a priori idealistic conceptions of how to organize societies come
sometimes to the fore. It is assumed that given a historically dependent societal structure all

33
Hassemer and Muñoz Conde (1989: 172–173), and von Hirsch (1998: 129–138) among others make
considerations about socio-historically dependent changes in its content without questioning the
principle.
34
Against understandings of the principle of proportionality as an overall standard that establishes the
foundations of criminal law and, therefore, regulates crime control interventions, see Díez-Ripollés
(2013: 127–131) and later in this paper.
3 Rationality in Criminal Lawmaking 56

main criminal policy decisions are already predetermined, notwithstanding social facts or
current public views. This approach ignores the pluralistic nature of our societies as well as the
array of criminal policy decisions which have to be made within any standard of law rationality
during the legislative process. A variation of this criterion, based on archetypes such as
‘mainstream citizen’, ‘average person', ‘law-abiding citizen’ and the like, veils the idealism of
this perspective under pretended mainstream stereotypes, never empirically tested enough. 35
Among experts’ criteria, the most traditional one adopts a technocratic-scientific
standpoint: an accurate socio-empirical analysis of the social problem at hand, of the criminal
interventions available and of their expected social effects will display, without value biases,
the objective and scientific solutions accessible to the legislative initiative. This perspective,
which claims to be ideologically neutral, actually uses an argument of authority to discredit
any other proposal, and incurs the well-known naturalist fallacy, because any criminal policy
choice entails a prescriptive assessment.36
A second experts’ criterion puts the emphasis on the social actors who should make the
decision, rather than on the quality of the knowledge to take into account. Consequently it gives
rise to the elitist perspective. It appears in legal systems where the populist approach has
pervasively corrupted the criminal lawmaking process as well as criminal policy across the
board. It tries to exclude criminal lawmaking procedure from the immediate control of
parliamentary assemblies, which are more prone to listen to populist demands, and it delegates
the drafting and passing of criminal laws to specialized parliamentary committees with full
legislative competence, more able to undertake non-emotional rational approaches to the
subject 37. Nevertheless, we should be cautious not only as regards exaggerated claims of the
unchallengeable irrationality of the demands of the public or media, but also, more specifically,
as regards the resistance of elites to listen to influential social actors, if not corporatist
interests. 38
Either way, and notwithstanding that previous socio-empirical analyses and expertise are
an essential prerequisite of any rational lawmaking decision, this criteria tends to overlook the
fact that majority rule is the definitive source of legitimation for public policies in democratic
societies.39
The constitutional criteria resorts to the supreme norm of the legal system to find the answer
to any controversy in criminal law making decisions. A wide constitutional approach does not
go further than generic considerations about the model of society a constitution reflects and
which any legislative initiative must pay attention to. This standpoint is usually unable to go
beyond the level of generic principles when giving precise responses to the debated issues.
The strict constitutional criterion upholds that any decision on criminal legislation is, in one
way or another, already determined by existing constitutional provisions: what lies open to
lawmakers is a correct legal interpretation of the decisions made by the constitution on criminal
matters (Bricola 1974; Arroyo Zapatero 1987; Álvarez García 1991; Carbonell Mateu 1996).

35
See different variations of this criterion here criticized, in Ferrajoli (1990) and Silva Sánchez (1992).
A critical analysis of the correspondence between social facts and legal archetypes, in Luhmann (1995:
322–323).
36
Among others, Beetham (1991: 69–75), Silva Sánchez (1992: 96–97) also voice criticism against this
criterion.
37
See Zimring, Hawkins and Kamin (2001: 15–16, 203–209) and, not so vigorously, Tonry (2004: 210–
213).
38
See also, Larrauri Pijoan (2009: 15–19).
39
Critical also of this elitist criterion, Beetham (1991: 88–90), Rubin (2001: 317–318).
J.L. Díez-Ripollés 57

This criterion, however, overlooks the complexity and mutability of our current societies. It is
true that any criminal law is illegitimate when it contradicts constitutional principles and
provisions. Nevertheless, common needs and shared values continuously evolve in our
societies and crime control must be flexible enough to accommodate changing demands. It is
naïve to think that a constitution, no matter how decisive it is, can anticipate the right solutions
for any criminal problem in the future. 40
As anticipated, the sole ethically legitimated guideline for solving discrepancies concerning
rational criminal law making within any rationality but the ethical one is the democratic
criterion. There is no alternative to majority rule for criminal policy decisions in democratic
societies. First, it tallies with our common beliefs about political legitimation in contemporary
societies, provided that the essential values and principles shared by all are preserved. Second,
it matches the political structure of pluralist societies, which are based upon the assumption
that their citizens have the necessary analytical abilities and the willingness to debate and adopt
decisions on issues affecting substantial aspects of social life. Questioning citizens’ aptitude
means questioning our democratic societies. Third, this criterion allows us to move forward to
the implementation of true deliberative and participatory democracies, where collective
decisions are an outcome of public discourse, in accordance with Habermas’ discourse ethics.
Finally, the current salience of crime issues and public safety make unrealistic the attempt to
isolate criminal justice policy from public opinion and the public. 41
However, the adoption of the democratic criterion confronts many risks, specifically in
societies where a populist approach to criminal policy prevails. The instability of the
democratic standard throughout history and, related with that, its absence of trustworthiness,
used to be early objections (Pérez Manzano 1986: 270–2 83; Silva Sánchez 1992: 112).
These remarks suffer, in our opinion, from a wrong understanding of the democratic
criterion. On the one hand, this standard refers to firmly rooted and widespread states of public
opinion so that a vast majority of the population backs criminal policy decisions (and only a
small minority dissents,) and opinion is resilient enough to persist over time bypassing social
circumstances and isolated events. On the other hand, there are sufficiently reputable
demoscopic tools, from opinion polls to deliberative surveys, and ways to validate them, which
make it possible to ascertain—without bias—actual opinions. 42
Another objection deals with the limited argumentative ability of the public. First, because
when it comes to debating “hot” issues, citizens are frequently influenced by unconscious
socio-psychological and emotional needs; second, because they are easily affected by pressure
groups and entrenched interests; and third because they are incapable of confronting complex
criminal policy topics. 43
Answering those remarks, we can say first that unconscious motivations lose their
discursive strength once they are unveiled to their proponents. Second, we can argue that the
intention of different social actors to influence key decision-makers is an innate, even desirable,
trait of any criminal lawmaking process, and transparency about these influences should be

40
The following make analogous criticisms, Ferrajoli (1990: 472, 477, 922–935), Silva Sánchez (1992:
176, 273–275), Palazzo (1997: 707–708, 723–727), Soto Navarro (2003: 51–58).
41
In authors like Beetham (1991), Habermas (1994), Beck (1998), and Rubin (1999) a strong defense of
the democratic criterion underlies different understandings on how to make legitimate collective
decisions.
42
A similar reasoning in Martínez-Buján (2002: 28–29), Soto Navarro (2003: 81–82, 101–104).
43
See reference to one or various of these objections, in Pérez Manzano (1986: 270–283), Silva Sánchez
(1992: 233–236, 278–280), Rubin (2001: 29–31), Zimring, Hawkins and Kamin (2001: 188–189, 201–
203), Prieto del Pino (2004: 218).
3 Rationality in Criminal Lawmaking 58

enough. Finally, we can accept that the space of public debate is the right place to make
fundamental decisions about criminal policy issues, but at the same time leaves in-depth study
of the specific technical aspects to legal experts.
However, what is at stake is the commitment to build an open space of public discourse,
which will strengthen it with the purpose of fully displaying the virtues of the rationality model
of criminal law making. In addition, the democratic criterion does not question the
institutionalized processes of deliberation and decision making of the executive and
parliamentarian bodies. What the democratic criterion intends is to make sure that the will of
the people substantially molds and enriches the whole process of criminal law making.
Some think that the democratic criterion does not show enough respect to due process
safeguards because public opinion hesitates to abandon the victim’s perspective. The
acceptance of the democratic criterion would mean the collapse of due process safeguards. 44
However, legal safeguards result from the demands of the public, even though lawyers and
other experts had a leading role in shaping them, and they will remain in place as long as the
public legitimize them. The questioning of some legal guarantees by public opinion sometimes
simply reflects a change of social conceptions about how crime should be controlled, and does
not imply a reduction but a substitution of due process safeguards; stricter demands on personal
data protection or public transparency obligations offset lesser reluctance to accept body
searches or exceptions to banking secrecy, for example. Certainly, other public demands for
nullifying some legal safeguards can affect the core of due process, but the reaction should not
be to take refuge in expert knowledge, immune to the demands of the public. Instead, we, as
experts, have the task of convincing the public of the risks for everybody’s rights of abandoning
these barriers established against misuses of the state`s right to punish. Moreover, let me
remind readers that the public may shape criminal laws, but ultimately it does not enforce them.

3.6 The Constitutional Review of Criminal Statutes

An accurate knowledge of the sociological dynamic of criminal law making, together with the
building and acceptance of a set of rational criminal law making standards and the transfer of
those standards to the present legislative process, do not guarantee the achievement of rational
legislation. We need an organ for checking whether the legislative product satisfies the rational
demands placed on the new statute.
Legal systems vary significantly on the nature and extent of their controls concerning
legislation. Most jurisdictions rely either on constitutional courts or on ordinary supreme courts
that have such additional province. These judicial bodies are able to perform judicial review
under restricted conditions, two of which have far-reaching importance. First, the court must
confine itself to reviewing the compatibility of legal provisions with the principles and rules
contained in the national constitution. Any intention to transcend the constitutional frame will
be illegitimate. Second, judicial deference to law makers is a well-established standard in
democratic societies based on the separation of powers. What this means is that the legislature
is autonomous when it comes to legislative policy and legislation, and that the judicial review

44
The following all express in one way or another this concern, Amelung (1980: 20–21, 35–38), Pérez
Manzano (1986: 180–181), Ferrajoli (1990: 462–463), Silva Sánchez (1992: 232–241), Palazzo (1997:
699–700, 730–731).
J.L. Díez-Ripollés 59

of legislation must abstain from promoting or preventing specific legislative policies through
favoring some constitutional interpretations over others. 45
In that respect, the constitutional review of criminal law making is no different from reviews
of other branches of the law. More precisely, the autonomy of the legislature comprises the
exclusive design of legislative policy on criminal matters and stretches to the selection of
protected legal interests, behaviors to punish, and sanctions to impose. Nevertheless, legislative
crime control policy has to line up with constitutional standards; the strict observance of
fundamental rights and civil liberties usually being the reference points in this field. 46
The question is how far we can go in controlling the rationality of criminal lawmaking under
these circumstances. As described (we said) in the Introduction, the ultimate aim (of our
endeavor) is to overrule any criminal statute that grossly fails to fulfil the requirements of a
rational criminal law making decision. In the following paragraphs, we shall deal with this
issue from a procedural as well as a substantive point of view.
Before doing so a couple of remarks, however. Constitutional review ordinarily focuses on
the parliamentarian phase of the legislative process, although it makes some incursions into the
last stage of the pre-legislative phase, that is to say, the drawing up of the draft bill by either
governmental or partisan bureaucracies, as well as into the evaluation phase. Moreover,
although the thoughts included in section 1 apply to parliamentarian procedural requirements
related to the making of any law and not just criminal law, section 2 is more concerned with
the specific needs of the substantive review of criminal laws.

3.6.1 Control of the Parliamentary Procedure

Observance of the parliamentary procedure in law making is of paramount importance for

ensuring rational legislation. As constitutional courts usually recognize, all legislative actors
must remain within their respective spheres of decisional competence; exert this competence
at the right moment along the process of legislation; and carefully fulfill their tasks as
prescribed by the constitutional rules on lawmaking. Compliance with such procedural
requirements is crucial for an adequate formation of the legislator’s will (Biglino Campos 2001:
159-160), and for ensuring that the legislative body satisfies the demands of rational decision-
making.
Due to the constraints of space, I will briefly mention three specific procedural problems
and will put aside more profound considerations on the quality of legislative reasoning. 47
The first procedural problem deals with the need to expand -beyond the constitution itself-
the body of constitutional rules and principles (“constitutional corpus”) that should be observed
when law making. As the constitution has by nature a limited number of provisions concerning
the legislative procedure, these need to be complemented by other provisions, which are
normally included in parliamentary standing orders and in regulations governing the drafting
of laws by the executive branch. These rules form a regulatory unit and consequently deserve

45
On the deference principle, see González Beilfuss (2003: 49–55, 72–74), Lascurain (2016) and Chap.
9, Sect. 9.3 in this volume (Oliver-Lalana 2018).
46
As an example, see the observance of this way of reasoning at the Spanish Constitutional Court (TC),
Judgments of 24 February 2004 (STC 24/2004), 13 September 2005 (STC 332/2005) and 14 May 2008
(STC 59/2008), among others.
47
On this, see Chap. 8 and Chap. 9 in this volume (Atienza 2018 and Oliver-Lalana 2018).
3 Rationality in Criminal Lawmaking 60

the very same normative status, i.e. they all must be seen as constitutional rules. 48 It is only
when the legislature and government have to comply with this constitutional corpus as a whole,
that judicial review is able to meaningfully control the legislative procedure.
The second problem refers to the preparatory materials that must accompany any legislative
initiative. Impact assessments, check lists, implementation capacity reports, mandatory
opinions from consulting bodies, explanatory memorandums, preambles and the like are
essential for justifying the draft bill, and even more for providing MPs with all the necessary
elements for adopting a grounded legislative decision. The importance of such studies and
analyses for ensuring the rationality of the proposed statute is beyond question. Unfortunately,
some constitutional courts validate the occasional absence of some of these compulsory
documents as long as parliamentary groups feel themselves sufficiently informed on the issue
and make no objections.49 This is a gateway for irrational lawmaking.
The third procedural problem concerns the congruence between the parliamentarian debate
and the content of the draft bill upon discussion. This congruence is fundamental to guarantee
that the legislative decision finally adopted takes into account the different opinions expressed
by MPs and parliamentary groups, and the magnitude of their endorsement. The debate in
parliament is the decisive moment when the members of parliament, individually or
collectively, make their diverse arguments felt and so contribute to shaping the will of the
people they represent. It is also a sensitive time for assessing if legislative reasoning is keeping
pace with rationality standards. All this demands scrupulous compliance with the content and
timing of the various parliamentary stages. This is not the case when a counter-opinion
completely modifies the content of the original draft bill once the parliamentary process has
already begun, or when amendments are introduced which do not fit in with the content of the
statute or specific provision they aim to amend. These parliamentarian tricks and others like
them intend either to transform the scope of the draft bill or to add a new and heterogeneous
content to it, avoiding to a greater or lesser extent essential steps of parliamentary debate.
Constitutional courts should be attentive to these disruptions of legislative deliberation. 50

3.6.2 Control of the Content of the Law

To accomplish effective constitutional control of rational criminal law making it would be

desirable to have some specific provision laid down in the constitution which constitutional
courts can resort to. But this is nowhere the case and we are compelled to look for constitutional
principles or rules in force, the rationale of which allows this law making control.
The principle prohibiting the arbitrariness of public authorities, as long as its scope reaches
legislative, executive and judicial performances, is a good candidate. Often constitutions
explicitly include this principle, and its ambitious interpretation and operationalization could

48
On the constitutional corpus in Spain and in comparative law, with some discrepancies about its
content, Jiménez Aparicio (1989: 143–148; 2004: 286–287, 297–298), Biglino Campos (1991: 22–31,
41–43, 108–109, 160–163), Garrorena Morales (2001: 90–91), Spanish Constitutional Court Judgments
of 29 July 1986 (STC 108/1986) and 11 June 1987 (STC 99/1987).
49
See Spanish Constitutional Court, Judgment of 29 July 1986 (STC 108/1986). A review of the Spanish
jurisprudence, profoundly split on the issue, in Viver Pi-Sunyer (2001: 171–173).
50
After some hesitations, see Spanish Constitutional Court, Judgments of 15 February 1990 (STC
23/1990), 5 July 2011 (STC 119/2011), and 13 September 2011 (STC 136/2011). Also, Biglino Campos
(2001: 176), Consell Consultíu, Generalitat de Catalunya (2004).
J.L. Díez-Ripollés 61

have long-reaching effects on substantive legislative control. Looked at closely, it is all about
preventing legislative processes which arbitrarily overlook the basic and common standards of
rational decision making. However, this principle has so far yielded poor results to substantive
legislative control. It mainly runs into difficulties when precisely shaping its conceptual
contents, ending in vagueness and uncertainty. 51
On the other hand, the principle of proportionality enjoys widespread recognition as the
proper criterion to carry out the substantive control of rational criminal law making. Although
most constitutions do not include a specific provision containing this principle, it has become
the usual standard that constitutional courts make use of when reviewing legislative
decisions.52 A common understanding of this principle, in as much as it concerns criminal law
making, says that a provision punishing a crime pays due respect to the proportionality
principle if all of the following requirements are fulfilled. 1. The provision pursues a legitimate
objective, that is to say, it intends to protect a legal interest that does not contravene the
constitution and is not socially irrelevant. 2. The provision is suitable for achieving the goal of
protecting that legal interest. 3. The provision is necessary because no less restrictive and
equally efficacious means are available. 4. The provision is proportional in the strict sense as
long as there is a balance between the rights and liberties affected by the penalty and the value
and social importance of the legal interest protected. 53
When we confront this well-known constitutional standard of criminal law rationality with
the requirements established by the five-level pattern of rational criminal law making put
forward in this paper, the merits and shortcomings become obvious at the same time.
Starting with the merits, the proportionality principle enjoys an ambitious analytical
structure, which has substantially helped to control the rationality of legislation. More
particularly, it comprises a relevant, but incomplete, number of the requirements stated in the
five-level pattern of rational criminal law making (supra).
The content of the legitimate objective requirement takes into account both the principles
of harm and significant offence, which are the cornerstones of the ethical rationality principle
regulating the identification of the legal interests that criminal law must protect. Additionally,
it favors a consideration of constitutional principles and rules as a frame within which the
legislature can adopt any criminal law decision not contradicting them—a consideration which
refutes the misguided idea that the content of all criminal policy decisions is predetermined by
constitutional provisions. 54
The suitability of the law for achieving the desired objective refers to some of the elements
of pragmatic rationality. It specifically means that the criminal statute, once in force, will work

51
See a detailed analysis of the unsatisfactory use of this principle on criminal law making matters by
the Spanish Constitutional Court, in Díez-Ripollés (2013: 226–233). Despite that, in favor of this
principle as the main tool for constitutional law making review, Spanish Constitutional Court, Judgment
of 2 October 1997 (STC 161/1997), separate opinions by magistrates García Manzano and Gimeno
Sendra; Garrorena Morales (2001: 159), Cuerda Riezu (2002: 245–246), Cruz Villalón (2004: 115–116,
124–125), García-Escudero Márquez (2010: 194–196).
52
The European Court of Human Rights and the Court of Justice of the European Union also currently
apply the principle.
53
References to the application of this principle in different constitutional jurisdictions, in González
Beilfuss (2003: 21–22), Lopera Mesa (2006: 30–43), Muñoz de Morales (2011: 313–440), Díez-Ripollés
(2013: 233 ff.), Goeckenjan (2015: 186–209), Vélez Rodríguez (2016: 113–145), and Chap. 7 in this
volume (Marcilla Córdoba 2018).
54
See supra in this paper. Also, approvingly, González Beilfuss (2003: 67b–68, 121–122).
3 Rationality in Criminal Lawmaking 62

as a behavior directive for law-abiding citizens, limiting the commission of punishable

offences. This requirement implicitly also covers another aspect of effectiveness, i.e. the
capacity of the law to become a normative expectation, insofar as it can impose itself through
legal coercion on offenders. Additionally, it is beyond question that this requirement includes
the necessary considerations about the ability of law enforcement to accomplish the intended
protection of legal interests (efficacy).
The necessity of the legislative initiative entails a new reference to pragmatic rationality,
more precisely, to the subsidiarity principle, which ensures the transversal dimension of
efficiency within this level of rationality. 55 The availability of less onerous (but at least equally
efficacious) means than those of criminal law must be taken into account. A careful socio-
empirical analysis of the capacity of either social policy measures or social control measures
to address the problem without the intervention of crime control is expected.
In the field of criminal lawmaking, proportionality in the strict sense directly relates to one
of the most conspicuous criminal law principles. It belongs to the principles of ethical
rationality within our five-level rationality pattern, and it legitimates the different kinds of
criminal sanctions applicable to criminal offenders. We have already set out this principle
supra: it is enough to remind that it guarantees that the magnitude of the affliction caused by
the penalty to the offender corresponds to the magnitude of the harm caused by the offence and
to the intensity of the criminal liability of the offender (Aguado Correa 1999: 141–142; Mir
Puig 2002: 358). 56
Among the cons against the use of the proportionality principle, the first is the absence of a
statutory recognition of the principle by most constitutions. This fact puts the principle at risk
of delegitimisation because referrals to other constitutional principles and rules become
unavoidable. This is all the more so because the principles and rules referred to are not
necessarily coincidental in all rulings, within and outside the same legal order. It fosters
divergences to a greater or lesser degree about the contents of the principle as well as about its
legal effects. 57
A second objection has to do with the limited scope of application assigned to this principle
by constitutional courts. It is a common opinion that this constitutional standard of law is
limited to ensuring that statutes do not unjustifiably affect those fundamental rights and
liberties recognized by constitution (González Beilfuss 2003: 108-112). However, its
confinement to this important goal means other constitution-building principles and rules tend
to be ignored. Additionally, and more importantly, the principle neglects the working out of a
consistent and comprehensive structure of law making rationality to be managed for
constitutional purposes; the inescapable focus of the reasoning on the endangerment of a
fundamental right or liberty gives rise to a piecemeal and one-sided argumentation on
legislative rationality.
A thorough analysis of the current elements shaping the proportionality principle, and how
constitutional courts interpret them, confirms these apprehensions. The analytical frame and its
individual components are insufficiently comprehensive and systematic to pay proper attention

55
Same opinion, but also including the principle of significant offence, Mir Puig (2002: 358), Prieto del
Pino (2004: 208).
56
Nevertheless, the so-called ‘over breadth’ doctrine, repeatedly applied in constitutional case law under
this requirement, operates rather within the transversal dimension of efficiency in this case concerning
ethical rationality elements.
57
On the rare occasions constitutional wording explicitly recognizes this principle, see González
Beilfuss (2003: 21–22).
J.L. Díez-Ripollés 63

to the varied aspects of rational criminal law making, not even under the limited scope of
constitutional review. But more than that, a closer insight into the way the different elements
are understood by case law brings to light continuous overlapping; this means that similar
contents and demands are frequently said to belong to different components of the principle,
depending on unclear, ill-founded reasons, on a case by case basis. Finally, the line of argument
regularly encompasses very broad terms, unduly assuming assertions to be proven which need
further confirmation, not answering concrete allegations of the appellants, and repeatedly using
set phrases to respond varied claims. 58
My conclusion is that, notwithstanding the important progress the proportionality principle
has made to the constitutional review of rational criminal law making, we need another more
comprehensive, systematic and, for our purposes, more crime control oriented-tool. 59 As
already said, the constitutional principle prohibiting the arbitrariness of public authorities could
provide a better legal cover to rational law making standards, being well aware that every
branch of law probably requires an adaptation of the general standard to its singularities, as is
indeed the case with criminal law.

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Chapter 4
Legislation, Communication, and Authority. How to
Account for the Bindingness of Law?

Bart van Klink *

Abstract In contemporary legislation 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 this chapter I explore, building on these two models, how we can account for
the bindingness of law. How to explain or justify the general expectation that legal norms are, or have
to be, respected? As I 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.
Keywords Symbolic legislation • Instrumentalism • Authority • Ideology • Validity • Reciprocity •
Political methodology

4.1 Normative Power

In contemporary legislation theory, legislation is seen, ideally, as a matter of interaction and

communication. Laws are created and applied in various social practices in which citizens are,
to a greater or lesser extent, involved. It is not, or not primarily, a description of how laws are
made in real life, but predominantly a normative conception: it indicates how legislation, given
some normative (legal, political and moral) notions, ought to be made and implemented. This

B. van Klink ()

Vrije Universiteit Amsterdam, Faculty of Law, Department of Legal Theory and Legal History
De Boelelaan 1105, 1091 HV Amsterdam (The Netherlands)
e-mail: [email protected]
4 Legislation, Communication, and Authority 68

conception of legislation is based on what I would like to call the ‘Law As Symbol’ model
(LAS for short), since it conceives of law as a collection of general clauses which are open to
interpretation and expressive of fundamental values. As an expression of values, law should
reflect the ideas and ideals of those who are expected to comply with it. According to the LAS
model, legislation is an ongoing communicative and interactive process in which various actors
in society – officials as well as citizens – work together on an equal level to create and
implement legislation. Legislation is not (or at least should not be) a top-down affair where the
legislature, from a position outside or above society, disseminates its dictates; the main source
of law is (or should be), on the contrary, society where legal norms originate and evolve.
The LAS model distinguishes and distances itself critically from what I would call the ‘Law
As Instrument’ model (LAI for short). In the LAI model law is conceived as a series of
commands or directives that the legislature imposes on society in order to achieve specific
policy goals. Legislation has no intrinsic moral value; it mainly is a means to a politically
defined end. It consists of detailed norms that are backed up with sanctions. Citizens are
expected to follow the law, if not out of inner conviction, then because they fear the
consequences law attaches to the violation of its norms (fines, imprisonment, community
service and so on). The LAI model is presented as a description of how laws are supposedly
made in real life. However, it can also be seen as a prescription of how laws, for instance from
the viewpoint of practical reason, ought to be made. To be clear, the LAI model basically is a
construction put forward by adherents of the LAS model for polemical purposes, that is, a
caricature which is meant to demonstrate the soundness of the LAS model and its superiority
over the LAI model. Though it resonates with some popular and therefore inevitably somewhat
distorted notions of legal realism and legal positivism, it will be very hard to find any legal
theory which would fit the LAI model in its crude form, as the LAS model construes it.
In this chapter I want to explore, building on these two models, how we can account for the
bindingness of law. How to explain or justify the general expectation that legal norms are, or
have to be, respected? In other words, what constitutes the authority of law? Authority in this
context is used as a normative concept which clarifies on what grounds it can be reasonably
(so not necessarily empirically) expected that citizens are willing to follow the law. Authority
is not just power, that is, the capability to impose one’s will on others by whatever means. It is
what Raz (1979: 18) calls “normative power”, which claims to be or is considered to be
legitimate authority. Legal norms issued the legislature are generally expected to have authority
in this sense; commands coming from a criminal organisation like the mafia most likely not. It
is my claim that we need elements from both models for a satisfactory account of law’s
authority. 1 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 fully explaining or justifying law’s authority. How can a
command or communication in itself generate legal duties? What is missing in both models, in

1
In this context, ‘law’ refers to the general set of legal norms issued by officials who have been granted,
within a certain legal system, the competency to create law. It corresponds to what Van der Burg (2014:
99) calls ‘enacted law’ as opposed to ‘interactional law’ comprised of implicit rules. ‘Legislation’ is a
subset of this general set, consisting of legal norms issued by the legislature. I focus here in particular
on legislation created by the highest legislature within a legal system (that is, Parliament in a nation
state).
B. van Klink 69

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.
First, I will present the two models by discussing the main claims they make about the
nature and purpose of legislation and the legislative process (Sect. 4.2). Since the LAI model
is, to a large extent, a biased and distorted projection from the LAS model, I will have to
reconstruct it and present it in a more favourable light, before we can assess its strengths and
weaknesses. Second, I will compare the two models and show that, despite obvious differences,
there is a perhaps less conspicuous similarity in the way they explain or justify the bindingness
of law (section 3). Both models, as will become apparent, focus exclusively or predominantly
on the procedural aspects of authority and ignore or downplay the political dimension. Third,
I will show how ideology helps establishing and sustaining the authority of law and how
legislative theory contributes to the production of ideology (section 4). Finally, the relevance
of this exercise in political methodology for legislation theory will be discussed (section 5).
Why should we, as legal scholars, concern ourselves with the political, potentially darker side
of law’s authority?

4.2 Two Models of Legislation

What follows first is a description of the LAS model (Sect. 4.2.1), based on what in Dutch
legislation theory is known as the communicative approach 2 and the interactive approach 3 to
legislation, which are inspired in particular by the works of Kenneth Burke, Lon L. Fuller and
Philip Selznick. 4 It corresponds to a large extent to what I have called earlier ‘symbolic
legislation in the positive sense’. 5 The model will inevitably have a schematic and abstract
character (therefore it is a model), so many specific details and individual nuances of the
various contributions will get lost but it claims to be true to their general spirit. Subsequently,
I will present a reconstructed version of the LAI model (Sect. 4.2.2), which departs from the
crude version offered by the LAS model but seeks to reconstruct it by adding some elements
from legal positivism (in particular Hans Kelsen, H.L.A. Hart and Frederick Schauer) and, to
a lesser extent, legal realism. 6

2
Developed in, for instance, Witteveen (1991 and 2005), Van Klink (1998, 2005 and 2016b), Witteveen
and Van Klink (1999), Van Klink and Witteveen (1999), Van Schooten (1997), and Azimi (2007).
3
See, among others, Van der Burg and Brom (2000), Van der Burg (2003 and 2014), and Poort (2013
and 2016).
4
On the distinction between the two approaches see, amongst others, Van der Burg (2005). I believe this
distinction to be exaggerated, mainly upheld for polemical reasons. However, I am willing to follow here
the self-description of the interactive legislative approach.
5
In Van Klink (1998: 48–76 and 83–126; summarised in English in: Van Klink 2016b: 21–28) I
distinguish two senses of symbolic legislation, a negative and a positive one. Whereas symbolic
legislation in the negative sense (in the traditional socio-legal understanding) is issued merely for
political purposes (for instance, to simulate power in a crisis situation) in order to preserve the status
quo, symbolic legislation in the positive sense promotes communication and interaction and aims at
changing current ways of thinking and acting by means of persuasion.
6
I consider this to be the main sources which adherents of the LAS model refer to (mostly implicitly)
when presenting their version of the LAI model. The LAI model is very similar to the “Command and
Control” model discussed by Manuel Calvo García (2018).
4 Legislation, Communication, and Authority 70

4.2.1 The Law As Symbol Model (LAS)

According to the LAS model, law is, or should, be a symbol or a collection of symbols.
Symbols are, in semiotic terms, a special kind of connotative signs, that is signs which, beside
their literal or conventional meaning, convey another, secondary meaning (or connotation, see
Eco 1984: 131–163). An established unit of expression (or signifier) and content (or signified)
which constitutes an ‘ordinary’ sign, functions as the expression for a new content. One can
think of the sign ‘sun’ which not only has the primary meaning of a celestial body, but which
also transfers connotations such as fertility, warmth and recreation. Like other connotative
signs, a symbol contains a layered semantic structure. However, the secondary meaning that it
conveys is of a more general and indeterminate nature, compared to other, more conventional
connotations. There is no code available that may determine or guide the interpretation of the
symbol. As Nöth (1990: 119) indicates, symbols represent an “immaterial content of
importance to human life.” In many cases, values of a ‘higher’, spiritual order are at stake. A
well-known and somewhat worn-out legal symbol is that of Lady Justice which represents an
impartial and fair trial.
As a symbol, law has no fixed meaning and allows for multiple interpretations. There is no
‘original’ and no ultimate meaning. Law keeps on evolving through time. It is an expression of
values which are widely shared by members of the legal community, such as freedom, equality
and solidarity. There is a relation, even an essential connection between law and morality:
moral values inspire the creation of new laws, whereas law in its turn influences morality (Poort
(2016: 81) speaks in this respect of a “two-track approach”). Many social actors, not only the
‘official’ legal and political actors, are engaged in the process of the creation and interpretation
of law.
Applied to legislation, several claims follow from the LAS model:
(1) Legislation has value: because legislation is the outcome of special, democratic
procedure it has, as Waldron (1999: 156; original italics) puts it, ‘dignity’: “(…) the dignity of
legislation, the ground for its authority, and its claim to be respected by us, have a lot to do
with the sort of achievement it is.” It is not just some tool that can be used for any means or
can be disposed of like that.
(2) Legislation is an expression of values: it contains aspirational norms which reflect
generally shared moral values. It symbolises what we, as a community, stand for.
(3) Legislation requires interpretation: the LAS model focuses on law consisting of general
clauses which have to be interpreted. The legislature cannot and does not intend to determine
the meaning of the law; in its application to concrete cases, the law acquires its provisional
meaning. There is no strict division of power: in some cases, other instances than the legislature
(for instance the court) can take the initiative to create legal norms or give new meanings to
existing norms. The law’s interpretation is a collective enterprise in which both legal officials
and citizens participate and cooperate.
(4) Legislation requires communication: the legislative process does not stop with the
promulgation of the law; the legal norms have to be communicated to the norm addressees.
People cannot reasonably be expected to comply with the law, if they do not know its content.
It is the legislature’s duty to actively disseminate its message, not only via the official channels
but also via other media. In the process of communication, the meaning of the law inevitable
changes. An ‘original’ meaning does not exist, since the many actors involved in the legislative
process give various interpretations to the law. Law has to be interpreted over and over again
in the light of new circumstances.
B. van Klink 71

(5) Legislation results from social interaction: law is an ongoing cooperative activity in
which official actors and citizens work together. In the communicative approach (as developed
by Witteveen and Van Klink), the legislature initiates and orchestrates the creation of law,
inviting other actors to engage in the legislative process and in the subsequent implementation
of the law. In the interactive approach (as advocated by Van der Burg, Brom and Poort), more
radically, the legislature is only one of the possible actors in the legislative process and not
necessarily the most important one. According to Van der Burg (2005: 257–258), the process
of creating and applying law does not presuppose a regulative center but a network of actors:

[T]aking legislation as a starting point for analysis easily leads to regarding the legislature
as the central actor in normative analysis. In a consistently interactionist approach, the
normative perspective of the actor should also be broadened. Society should be analysed
more in terms of a network of actors interacting with each other than of one central actor
interacting with all other actors.

Ideally, law emerges bottom-up from the social interactions between the various actors
involved.
(6) Legislation offers a vocabulary: law affects the way in which people perceive reality
and how they act accordingly. As Kenneth Burke (1989: 115) argues, every vocabulary consists
of “terministic screens” selecting what we see and do not see. Through its concepts the law
makes the world understandable and manageable in legal terms. In Burke’s view, constitutions
play a central role in understanding the world: “Constitutions are of primary importance in
suggesting what coordinates one will think by” (Burke 1989: 367). As a vocabulary, the law
involves not only schemes of thought but also schemes of evaluation and action. That is, the
law suggests how reality has to be understood and evaluated and what actions are deemed to
be appropriate.
(7) Legislation addresses both actions and attitudes: as follows from the previous claim,
law is not solely interested in outer behaviour; it also intends to influence the people’s inner
convictions. It is not enough that the law recognises some fundamental values on a symbolic
level, or that citizens abide by its aspirational norms for opportunistic reasons (for instance, out
of fear of sanctions). The LAS model wants citizens to embrace the values which legislation
gives expression to. Therefore, it seeks to promote law compliance, not by the threat of severe
sanctions, but primarily by means of persuasion.
I consider the LAS model to be a predominantly normative model, because it does not, and
does not pretend, to offer an empirical analysis of how laws are created and applied in social
reality. As quoted under claim 5, Van der Burg speaks of a “normative analysis”. 7 The LAS
model does contain some descriptive statements (for instance, about how laws are made or are
interpreted), but these statements are inextricably linked to normative statements (about how
laws have to be made or interpreted),8 and its main thrust, in my view, remains normative. It
constitutes an ideal theory of how laws ought to be created and applied in social reality,
building on normative notions such as responsiveness, inclusiveness and reciprocity. On the
basis of this ideal theory, case studies are carried out – for instance in the field of embryo

7
Poort (2013: 31) presents “an ideal-typical model of the interactive legislative approach”.
8
In fact, descriptive and normative statements are not always clearly distinguished in symbolic
legislation theory, which has been the cause of some confusion (see Griffiths 2005: 160n.). I cannot rule
out the possibility that what I have presented here as normative claims can also be understood, in part or
in whole, descriptively. What I intend to do is to give a plausible version of the LAS model. In my view,
since most of the claims are so plainly counterfactual (i.e., at odds with legislative practice, see further
Sect. 4.4), I take these claims to be normative.
4 Legislation, Communication, and Authority 72

regulation (Van der Burg 1996), equal treatment (Van Klink 1998) or animal biotechnology
(Poort 2013) – in which the legislation and the legislative process at hand are evaluated in the
light of these normative notions. So it is assessed in concrete instances whether the law or the
law-making process is sufficiently responsive, inclusive, reciprocal and so on, and
recommendations are given how to improve the communicative or interactive quality of the
legislative practice. The LAS model does not claim to be universally applicable. It is
recommended in particular for ethically sensitive matters (Poort 2013: 11 and 39; Van der Burg
2005: 249–252) or, more generally, for politically controversial issues which cause
controversies and divisions in society or conceptually complex matters (Van Klink 1998: 431–
432). When, in due course, a matter becomes less ethically sensitive, politically controversial
or conceptually complex, 9 it may be possible to switch to the LAI model. In that case, the
aspirational norms are translated into more concrete norms which citizens are expected to
simply follow.

4.2.2 The Law As Instrument Model (LAI)

The LAI model, as it is construed by the LAS model, describes the way law is supposedly
created and applied in ordinary cases and how it is commonly (again supposedly) perceived. It
is the standard view, against which the LAS model can present itself as an alternative,
complementary and, arguably, more sophisticated view. The LAS model offers, as mentioned
earlier, a rather crude version of the LAI model, which fails both on empirical grounds, as a
description of the legislative practice, and on normative grounds, as an evaluation and
justification of this practice. Therefore, I will try to amend the model on some points (which I
will indicate), building on current legal positivist and legal realist ideas and concepts.
As an instrument, law is created by the state for a specific purpose. It is a means to a certain,
politically defined end. Whenever there is a social problem, law may be used to help solving
it. The legal system has to provide for stability and certainty. Therefore, legal norms have to
be as specific as possible, leaving little room for interpretation by other legal and political
actors. Law does change, but only if the legislature decides or allows to change it. There is no
necessary connection between law and morality. The legislature may draw its inspiration for
the creation of law from many different sources beside morality, for instance from religion,
tradition, political opinions, social habits and customs and so on. The law itself determines who
is competent to create and apply law, not necessarily only the state officials but also ordinary
citizens when they, for example, draft a contract (following the applicable legal conditions).
Applied to legislation, several claims follow from the LAI model:
(1) Legislation has an instrumental value: the meaning of legislation is its use or usefulness.
If it helps solving the social problem it is meant to solve, it serves its purpose as legislation; if
not, it has to be repaired in order to improve its functioning or it has to be replaced or
supplemented by some other instrument or instruments. For adherents of the LAS model, the
very idea that law is reduced to a mere instrument or is mainly valued for its instrumental value,
is already enough to discredit the LAI model. One may ask, however, whether it is really so
strange to perceive of law as a means to a certain end. Why do we have laws, if not to serve a
specific social aim – to penalise and prevent crimes, to protect the environment, to promote
equal treatment, or some other aim? In legal realism, law is primarily seen as “a tool to further

9
Whether consensus is really attainable or desirable, remains under discussion in the LAS model (see
Stamhuis 2005: 283–286 and Poort 2013: 34–35).
B. van Klink 73

the welfare of society” (De Been 2008: 97). In legal positivism, law is a means to create an
orderly and peaceful situation where people with diverging beliefs and opinions can pursue
their own goals within the limits of the law (see, e.g., Oakeshott 1999).
(2) Legislation serves social aims: as follows from the previous claim, legislation is
primarily issued in order to solve social problems. Legislation can serve a variety of social aims
– it can be issued to protect basic freedoms, to secure safety, to provide for basic needs et
cetera. Which social aims it should serve, is ultimately a political decision taken by the
legislature. This does not rule out the possibility that other legal, political or social actors are
involved in the public debate on the best way – by means of legislation or some other
instrument – a particular social problem should be solved. 10
(3) Legislation requires enforcement and application: since legislation cannot execute
itself, it needs an executive apparatus that takes care that the law is maintained. Moreover, there
have to be courts that apply the general norms of the law to concrete cases. There is a more or
less strict division of power which prescribes that, as a rule, the legislature has to issue legal
norms which have to be executed and applied by the two other powers. It is not denied though,
that legal norms have to be interpreted first before they can be executed or applied. But
admittedly there is, compared to the LAS model, less room for interpretation in the LAI model
(at least in the positivist version which I present here 11), since the LAI model prefers strict
norms over general clauses.
(4) Legislation consists of commands or instructions: in the LAI model legal norms appear
either as commands which citizens are expected to comply with (e.g., car drivers should drive
on the right side of the road); or as instructions to the legal officials who are responsible for the
law’s execution or application, to apply the sanction prescribed in the norm in case of non-
compliance (e.g., if drivers do not drive on the right side, they will get a fine). Since legal
norms cannot properly function as commands or instructions if they are not sufficiently clear,
the LAI model has a preference for strict norms. In general, it rejects general clauses because
they do not provide for legal security.
(5) Legal norms are backed up by (deterrent) sanctions: it is an essential and characteristic
feature of law that it can be enforced by the threat of sanctions. 12 Typically, sanctions affect
goods that most people value most – that is, money (in case of fines), freedom (in case of
imprisonment) and life (when the death penalty is applied). If the law contains no sanctions or
no credible sanctions, it is not recognised as law in the proper sense. The aspirational norms
advocated by the LAS model would be considered in the LAI model as non-binding moral
appeals. Legally speaking, they constitute – in terms of systems theory (see, e.g., Luhmann
2004: 80) – nothing but ‘noise’, which the legislature preferably should refrain from.
(6) All legislation originates from the state: the state, as a legal order, creates the law that
governs society. In every legal order, the historically first constitution offers the legal
framework on which basis other legal norms can be created on a lower level in the hierarchy
of norms – Kelsen (1992: 225) calls this the Stufenbau. So it is true that the LAI model
presupposes a hierarchical relation between the legislature responsible for the creation of law

10
In her phronetic theory of legislation, Helen Xanthaki also makes a strict distinction between means
and ends (see chapter 2 of this volume).
11
In legal realism, courts have much more freedom to bend the law for social purposes. In his study of
legal realism, De Been (2008: 24) puts it as follows: “Concepts and categories were shaped and molded
by their facility in dealing with real-world problems.”
12
As Schauer (2015: 92) writes: “Yet although we know that a legal system could in theory exist without
sanctions and without coercion, we know as well that, with somewhere between few and no exceptions,
no such legal systems actually exist.”
4 Legislation, Communication, and Authority 74

and other actors and instances that take care of its implementation and application in concrete
cases. However, it is not true, as the LAS model claims, that the legislative process is a fully
top-down affair in the LAI model. According to the LAI model, the legislature does not stand
outside or above society, but is part of society. As Kelsen (1973: 197) argues, the legal order
is a specific way in which society organises itself. Moreover, anyone – state officials and
citizens alike – can become part of the law-making process if they are authorised to create
norms, for instance, when the law allows them to draft a contract or to issue internal
organisational norms.
(7) Legislation addresses actions only: as the law contains norms for action – either for
citizens to comply with the law or for legal officials to apply the prescribed sanction in case of
non-compliance –, law does not address attitudes or inner convictions. People remain free to
think or believe what they want, as long as they in their outer behaviour respect the law.
I consider the LAI model to be a predominantly descriptive model, because it pretends to
present a representation of how laws are created and applied in social reality. Whereas the LAS
model adopts an internal perspective to law, the LAI model approaches legislation and the
legislative process from a more detached or external perspective. That is, it attempts to refrain
from passing value judgments on the (moral or other) worth of the law’s content and
procedures. It would consider the claims made by the LAS model as either empirically
unfounded (e.g., are the values expressed by the law generally shared? Is full agreement ever
attainable in ethically sensitive or politically controversial matters? Can law do without
sanctions?); or politically questionable (e.g., is it acceptable that the law interferes with
people’s inner convictions? May the court create new legal norms?); or, at best, trivial and not
very interesting from a legal perspective (of course, legislation results from social interaction
and, of course, law requires interpretation and communication, but why make such a fuss about
it?). Evidently, though not always openly, the LAI model contains a normativity of its own
which constitutes its ideology, as will be discussed in Sect. 4.4. First, I will compare the two
models and show how their accounts of the authority of law can be related to each other.

4.2.3 Law and Authority

When the two models described above are being compared, several obvious differences come
to the fore. They differ, for instance, quite considerably in their conception of the nature and
purpose of legislation. Legislation in the LAS model is a valuable expression of values widely
shared in the community, whereas in the LAI model it is just an instrument which can be used
to solve social problems. They also quarrel about the right description (or prescription) of the
legislative process. In the LAS model not only state actors but many other social actors are (or
should be) involved in the process of law making. Conversely, in the LAI model all law
originates from, and can be (or should be) attributed, to the state. Arguably, the opposition may
be less absolute than it appears since the LAS model would not deny that the legislature may
play an important (though not necessarily the most important) role in the creation of law and,
it its turn, the LAI model presupposes a rather broad concept of the state which includes anyone
who is authorised by the law to create law. This includes not only state actors but also citizens
who, by definition, are members of the state when they issue legal norms (see Kelsen 1973:
181–206). However, there remains an important difference in orientation, which sometimes is
captured in very rough terms by the opposition between a ‘top-down’ versus a ‘bottom-up’
approach. The idea of a hierarchy of norms (or Stufenbau) which the LAI model adheres to
seems to suggest that the most important laws originate from the highest ranks of the state
B. van Klink 75

which are responsible for the constitution and other basic laws constituting the legal order.
According to the LAS model, in the daily life of citizens the most important law may very well
be the law that is created in society through social interactions, without any involvement of
state officials. 13 Moreover, both models have diverging views on legal interpretation and
communication. The LAS model rejects the idea that there is an ‘original’ or even a standard
meaning of the law, which can be communicated without distortion to the norm addressees. It
has a preference for permissive hermeneutic theories of interpretation (like Ronald Dworkin’s)
which grant a lot of freedom to those who have to apply the law. The LAI model, on the other
hand, favours more restricted views of legal interpretation, which for instance presume that
legal concepts have a conventional meaning which directs the law’s application in standard
cases (only in exceptional cases there may be a “penumbra of doubt”, as Hart (1961: 126)
argues 14); or legal concepts contain a “framework of meanings” that guide the application in
specific instances (Kelsen 1967: 352).
On a more fundamental level, the two models offer different accounts of what constitutes
the authority of law. In the LAS model, the bindingness of law results from processes of
communication and social interaction. According to the communicative approach (as
advocated by Witteveen and, in earlier days, by Van Klink15), it is the legislature who has to
invite and enable other state actors and citizens to participate in the legislative process and the
subsequent implementation of the law. The legislature consisting of state officials who are
primarily responsible for creating the law, remains the central actor in the legislative process,
but it has to take care that all relevant stakeholders can engage in deliberations on the law’s
content. The more inclusive the legislative process is – that is, the more actors are engaged in
creating and applying the law and the more its values are shared –, the more the law can
legitimately claim to be followed. According to the interactive approach (defended by, among
others, Brom, Van der Burg and Poort), legislation is created through social interaction in legal
practises by a network of actors. Within this network, all actors are engaged in the enterprise
of law making on an equal level. Law is binding for the people involved, because they have
created the legal norms themselves. Ideally, legislation is self-legislation. What both
approaches within the LAS model have in common, is that they conceive of authority, not as
something a-priori given or fixed, but as the outcome of the prescribed communicative and
interactive processes. Poort (2013: 11) states, following Van der Burg and Brom:

The authority of law can no longer be taken for granted, since society is too complex to
enforce legal norms. Moreover, legal norms that conflict with the moral or social norms
of the people or society will face enforcement difficulties and may even remain a dead
letter. The voluntary cooperation of citizens is, therefore, needed.

Law has to earn its authority by including as many actors as possible in the legislative
process, by giving expression to generally shared values, by being responsive to the people’s

13
Fuller explores various forms of social regulation, as part of his unfinished project called “eunomics”,
or “the science, theory, or study of good order and workable social arrangements” (Fuller 1981: 62).
Beside legislation or “officially declared law”, he mentions various “principles of social ordering”,
among which adjudication, mediation, contract and managerial direction (Fuller 1981: 170–171).
14
According to Hart (1961: 124), (legal or other) language has an “open texture” and “uncertainty at the
borderline”.
15
As elaborated in Van Klink (2005), and as will become apparent below, I have distanced myself in
some crucial respects from the communicative approach that I defended in my PhD thesis (Van Klink
1998).
4 Legislation, Communication, and Authority 76

needs and wishes, and so on – so that, eventually, citizens are willing to obey the law
voluntarily. Authority, in this conception, presupposes a relation of reciprocity between the
legislature and citizens. On the condition that the legislature abides by basic principles of law
making – that is, the demands of legality that, according to Fuller (1969: 42 ff.), constitute the
‘internal morality of law’ –, citizens can reasonably be expected to comply with the law. 16 As
Van der Burg (2014: 106) argues: “In order to produce fidelity, legal norms must be grounded
in shared understandings and built, maintained (and sometimes destroyed) in a continuing
practise of legality.” In the LAS model, the authority of law is a gradual matter: law can be
more or less successful in acquiring a symbolic value in society. This conception can be
characterised as communicative authority: 17 the authority of law has to establish itself time and
again by persuading people that the law is indeed created and applied in the prescribed
communicative and interactive way, in accordance with the requirements of reciprocity, and
therefore has to be followed.
In the LAI model, the law produces its own authority. The law contains the conditions and
procedures that have to be followed in order to create legally valid norms. In the hierarchy of
legal norms (following Kelsen), a norm is considered to be a valid legal norm if its creation is
authorised by a higher legal norm and, ultimately, by the basic norm constitutive of the legal
order. The authority of law is thus primarily a matter of authorisation. If the law is created in
the correct, legally prescribed way, it can legitimately claim to be binding on the norm
addressees (either the state officials who have to apply the law, or the citizens who are expected
to comply with it). So the authority of law follows from its validity: valid law has binding force,
that is, it ought be obeyed (by citizens) or applied (by legal officials) (see Kelsen 1967: 193
ff.). Moreover: it is an all-or-nothing matter; either law has authority or not. Between the
legislature and the norm addressees there is a hierarchical relation: the legislature is authorised
to give instructions (to state officials) or commands (to citizens). In the LAI model, legislation
can also be seen as self-legislation, not as an ideal projection (as in the LAS model) but as a
conceptual consequence: the legal order is nothing but a specific organisation of society which
manifest itself through the creation and application of legal norms (again following Kelsen).
Weber (2004: 133–135) calls this type of authority, characteristic of the modern era, “rational-
legal”. It is formal authority which, in contrast to communicative authority, does not have to
prove itself over and over again in lengthy processes of communication and social interaction.
The authority of law is given and fixed and follows from the formal requirements guiding the
law’s creation and implementation. The law may result from social interaction between various
actors and may require communication for its message to spread (which is not denied but
discarded as truisms) but interaction and communication do not, according to the LAI model,
constitute its authority. Quite the opposite, the authority of law has to be established first before
official actors can enter the stage to create and apply the law. Law’s authority would evaporate
soon, if it would depend on the people’s willingness to accept it in each and every case.
In the scheme below, I have summarised the accounts of law’s authority provided by the
two models in five claims (each relating to a particular aspect).

16
On the reciprocity between lawgiver and subject, see in more detail Fuller (1969: 137–140).
17
Rood (2012: 91) introduced this concept in his analysis of the way in which Dutch police officials
exert and establish their authority.
B. van Klink 77

LAS model LAI model

Aspect The authority of law is…

(1) QUALITY an achievement (process) something given and fixed (product)

(2) MEANS established via communication and established through authorisation (by a
social interaction higher legal norm and, ultimately, the
basic norm)

(3) MODALITY a gradual matter a matter of all-or-nothing

(4) PRINCIPLE based on reciprocity based on validity

(5) TYPE communicative (value-based) authority formal (legal-rational) authority

Fig. 4.1 Law’s authority according to the LAS and the LAI models of legislation

Both accounts of the bindingness of law, however different, do not have to exclude each
other entirely. To begin with, the LAS model restricts its applicability to matters that are
morally sensitive, politically controversial or conceptually complex. One may wonder whether
there is anything beyond these domains – is not every matter in the field of legislation to some
extent morally sensitive, politically controversial or conceptually complex? Yet, if it is
accepted that the LAS model is applicable only to specific highly controversial moral and
political issues (in areas such as biotechnology, euthanasia, equal treatment et cetera), then it
follows – by implication – that for other, less controversial topics (for instance, in the field of
criminal law) the LAI model may offer a suitable approach and gives a correct account of the
authority of law. Admittedly, adherents of the LAI model would not be inclined I suspect to
accept this version of the two truths doctrine. Generally speaking, the LAI model rejects the
normative approach to legislation offered by the LAS model: it prefers strict norms over
general clauses, it seeks to promote norm compliance by the threat of sanctions instead of
persuasion, it focuses only on outward behaviour and so on. More specifically, the LAI model
advances a formal notion of authority which conceives of social interaction and communication
not as a precondition of law’s authority but, conversely, as a result thereof. That is, social actors
can only interact in a legally relevant sense with each other and take part in deliberations on
the law’s content, because and after the authority of law has been established. To be honest, I
cannot believe that many adherents of the LAS model would be very happy with this solution
either. Although it sometimes pays lip service to the equivalence of both models, the LAS
model presents itself mostly as a modern and sophisticated alternative to the traditional top-
down approach to legislation as advocated by the LAI model, by appealing to lofty ideals such
as responsiveness, inclusiveness and reciprocity. In his last book, Willem Witteveen (2015)
defends a value-based understanding of law as artefact and work of art 18 against an
instrumentalist and technocratic conception of law, not only in specific legal domains but in
law in general.
Moreover, it can be argued from a methodological point of view, that the LAI and the LAS
model approach the question of the bindingness of law from two very different disciplinary
perspectives. The LAI model (following Kelsen and other legal positivists) addresses this

18
The Dutch word ‘kunstwerk’ covers both meanings.
4 Legislation, Communication, and Authority 78

question predominantly from a descriptive legal perspective. That is, it refers to formal legal
criteria which determine what has to count as valid law and, therefore, can make a legitimate
claim to be binding on the norm addressees. In other words, if the law is created in the correct,
legally prescribed way state officials have to apply it and citizens have to comply with it. The
LAS model, on the other hand, addresses the question of law’s authority from a normative
sociological perspective (in the line of Fuller and Selznick), which combines descriptive and
prescriptive statements. On a factual level, the interactive approach claims that law is produced
by a network of actors working together. The legislature may be one of the possible actors
involved, but not necessarily the most important one. Most of the legal norms are not created
by the legislature, but follow from the social interactions between people in society. As the
communicative approach argues, the legislature does take the lead in the legislative process but
engages other actors as well and invites them to contribute to the law’s interpretation and
application. On a normative level, both the interactive and the communicative approach stress
that the legislature has to refrain from imposing its dictates on society; instead it should give
recognition to generally shared values, be responsive to the people’s needs and wishes and
cooperate with other social actors in the activity of law making. Law is binding on the people
involved, if they have, or could have, contributed to its creation and subsequent
implementation, and if they recognise its symbolic value (as a valuable expression of
fundamental values).
Arguing from very different disciplinary backgrounds, the two models question each other’s
account of the authority of law, both on factual and normative grounds. The LAI model may
accept, as an empirical observation, that many actors participate in the legislative process, not
only or not predominantly the legislature. But it would never accept the claim that legislation
is or ought to be an expression of generally shared values, because it considers law to be a
product of political decision making in which some values are recognised officially at the
expense of others. Given the value pluralism in society (see Berlin 2002: 213–214), it is highly
questionable that values can ever be generally shared. Possibly, on an abstract level people may
share some fundamental values (such as equality), but they will inevitably disagree on their
application to concrete cases (for instance, does equality require or permit affirmative action
or not?). Moreover, it is practically impossible to include all people affected by the law in the
legislative process. The question can even be raised why there is any need for the concept of
authority in the LAS model at all, if legislation is seen as a collective enterprise in which people
create their own norms in processes of social interaction and communication aimed at reaching
agreement. According to the LAI model, the authority of law cannot be made dependent on
such volatile notions as the people’s support and participation. In its turn, the LAS model sees
no empirical ground for giving priority to the legislature in the process of law making. It would
argue that law can never function as an instruction or command, because in its application the
meaning of law will inevitably change; legal norms have to be interpreted case by case and
adapted to the specific circumstances at hand. An undistorted communication between the
legislature and citizens is an illusion. Furthermore, it would dismiss the notion of formal
authority as hopelessly formalistic and legalistic, since it ignores the social context in which
law has to function. If the law is not accepted by most of the people and people have no say in
its making, it can never acquire and maintain its authority. Additionally, the question arises
whether there is any need for the concept of authority in the LAI model, when it seems to
coincide with validity.
So the LAS and the LAI model do not necessarily exclude each other theoretically, since it
can be argued that they apply to different legal domains (controversial issues versus standard
cases respectively) and perceive law from different disciplinary perspectives (legal doctrine
versus normative sociology). I would even claim that in some sense the two models presuppose
B. van Klink 79

each other. For law to function as an instruction or command (according to the LAI model),
the legislature has to succeed in communicating its message to society. Communication does
not only mean that law’s message is transferred from one point (the legislature) to the other
(society) without too much disturbance, but also is accepted and acted upon by the citizens.
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. In my
view, both models, though not easily compatible, draw attention to different aspects of
authority which are all to some extent relevant for understanding why law can make a
legitimate claim to be obeyed. With the LAI model, I agree that the legal system offers criteria
to establish what has to count as law and, therefore, ought to be complied with. (Although it
still has to be established where exactly this ‘ought’ comes from.) Authority cannot be a gradual
matter which has to be decided case by case, because then the legal system could not fulfil its
central function, as Luhmann (2004: 174) argues, to stabilise normative expectations. At the
same time, I do believe – as the LAS model claims – that the law in order to acquire and
maintain authority needs to be accepted by most citizens. For law to be accepted, it is important
that it is recognized as a valuable expression of shared values and that citizens are enabled in
some way or other to contribute to its creation and application. So communication and social
interaction do matter when it comes to sustaining law’s authority. (Although it still has to be
established why and to what extent exactly these things matter.)
What both models, however different, share is a focus on procedures in their account of the
authority of law. In the LAI model, it is the procedure of law making, including the conditions
for making valid law that has to explain and justify why law can legitimately claim to be
followed. From its external and detached perspective, it does not prescribe how the law ought
to be created and what its validity conditions ought to be; it suffices to say that the law is created
according to the conditions given in the legal system. The LAS model does not restrict itself to
specific legally relevant decisions (such a court decision or the acceptance of an Act), as the
LAI model, but applies to all stages of the legislative process in general, from the very first
public debates on the law, to its conception and promulgation, and to its further development
and application in concrete cases. From its internal and committed perspective, it requires that
the legal and political actors involved in creating and applying the law act and interact in a
responsible and responsive way in a close cooperation with all those concerned. Though it
stresses the symbolic value of the law and shows an interest in a specific kind of values (see
further below), it does not offer a value theory of its own. The LAS model simply accepts
certain fundamental values as given. Following Selznick, Van der Burg (2014: 166) claims that
“[l]aw is good because it incorporates good values such as legality, justice and democracy.”
These values are not seen as absolute but as contingent, since they are considered to be relative
to our (Western, liberal-democratic) legal culture. Why these values are “good values” is not
explained, nor what the values of justice and democracy exactly entail. Most attention is paid
to the formal value of legality, which plays a central role in explaining law’s authority. Legality
is described in terms of the basic principles of law making that constitute Fuller’s internal
morality of law: laws should be general, clear, not demand the impossible, and so on. Legality
is essential to reciprocity which works both ways: by respecting the basic principles of law
making, the legislature may expect or demand from citizens in return loyalty or “fidelity” to
the law. In this respect, the LAS model remains as formal and focused on procedures as the
LAI model. What both models fail to address is the question what exactly constitutes and
supports these procedures. How can a legally valid command or a communicatively and
interactively successful process 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, which I will attend to now.
4 Legislation, Communication, and Authority 80

4.4 Law and Ideology

A full account of law’s authority, I would claim, cannot do without an exploration of its
political dimension. In this context, I use the notion of the political in three different, but closely
related senses, 19 referring to: (i) a comprehensive normative view on the nature, aim and scope
of regulatory power, 20 the division of power within the state (or some other social
organisation), the relation between state and society, the values to be protected through
regulation and so on (that is, in terms of political theory, an ideology); (ii) a political (not
necessarily party-political) programme that translates the general and fundamental assumptions
and aspirations into a set of specific prescriptions for the execution and division of regulatory
power within the social organisation at hand and that identifies the central goals to be achieved;
and (iii) a scenario that, on an even more concrete level, assigns to every actor or organisation
a specific role in the regulatory process and selects the regulatory instruments (legislation or
some other means) in order to achieve the political goals, laid down in the political programme.
For instance, the political philosophy of liberalism has, besides freedom, equality as one of its
core values (ideology); building on this value, equal treatment of men and woman can be
identified as a concrete political goal which the state is expected to guarantee (programme) and
which can be achieved by a means of, for instance, setting legal quota on the amount of women
in higher positions or through policy instruments like subsidies (scenario).
Legislative theory will inevitably have a political dimension, at least in the first and most
fundamental sense that it offers a justification and confirmation of the given legal and political
order which it has to take for granted, because otherwise it would lose its privileged object of
research, that is legislation. As legislative theories, the LAS model and the LAI model present
each in their own way an ideology, that is a justificatory narrative that helps sustaining the legal
and political order at hand. Both models attribute authority to the existing power structure, on
the condition that it creates legislation in accordance with their conditions. As Ricœur (1986:
13) argues, in political life there always is a tension between the legitimacy a ruling authority
claims for itself and the belief in its legitimacy granted by the citizens. Ideology plays a crucial
role in bridging this gap. According to Ricœur, ideology fulfils three functions. The first
function is to produce a distorted picture or an inverted image of reality. This is what Ricœur
(1986: 1) calls the “pathological dimension” of ideology, which is stressed by Marx and others
and which gives ideology its bad name. However, ideology has, on a more fundamental level,
also a “constitutive dimension” (ibid.) which is prior to and can explain its pathological
derailment on a superficial level. Since the notion of distortion presupposes that it is possible
to give a truthful account of what reality is or should be, 21 ideology may also play a constructive
role. The second function of ideology is to legitimate authority. Ideology justifies the existing
legal and political order and the power relations within it. Ideology’s third function is to
preserve social identity, that is, it keeps society together by securing its integration. According
to Ricœur, it is due to the integrative function that the justificatory and distortive functions can

19
This definition is taken, with some minor adaptions, from Van Klink (2016: 29–30).
20
That is, the power in both senses of capacity and competency to create or maintain order within a
certain social domain through the use of law or other means.
21
According to Ricœur (1986: 172), “the judgment on ideology is always the judgment from a Utopia”.
For the present purposes, I will not deal here with the relation between ideology and Utopia; that will be
the topic of a forthcoming article, entitled ‘The Rule of Law as Ideology and Utopia’ (under
construction).
B. van Klink 81

appear. Ideology shows its distortive face, “when the integrative function becomes frozen, (…)
when schematization and rationalization prevail” (Ricœur 1986: 266). So Ricœur does
acknowledge that ideology can be used in a negative way to deny or disguise how things really
are, but he puts emphasis on other, positive aspects of ideology. In his hermeneutic
understanding, ideology offers a “symbolic mediation (…) constitutive of social existence”. 22
It is an indispensable narrative device for making citizens willing to accept the authority’s
claim to be a legitimate authority.
I would characterise the ideology endorsed by the LAS model as social liberal (see Van
Klink 2016: 30–31). The LAS model is not necessarily, as a matter of principle, connected to
a social liberal ideology, since it is mainly concerned with the way law is created and applied
and not so much with its content. As argued earlier, it accepts certain fundamental values as
given within our legal culture – in particular legality, justice and democracy –, but it does not
offer a value theory of its own. In research practise, however, it shows a clear ideological
preference. The values which are studied and, implicitly or explicitly, supported within a
communicative and interactive approach to legislation are mostly of a social liberal kind, for
instance equality of men and women, equal treatment of gay people, good labour conditions,
and animal protection (see, respectively, Van Klink 1998; Van der Burg 2005; Azimi 2007;
and Poort 2013). Since these progressive values have to be realised in a communicative and
interactive way, one can never be sure that the resulting law is in accordance with the social
liberal ideology. So there is a possible (and no further theorised) tension between, on the one
hand, the adherence to certain substantive (social-liberal) values and, on the other hand, the
formal (democratic) requirement that the realisation of these values have to be outsourced,
from the legislature to the courts or to society in general. Within the LAS model not much
attention is paid to the dimension of exclusion which is a necessary part of every legislative act
(not everyone can participate in the legislative process, not every voice can be heard and
recognized). The attempt to depoliticise political power has, of course, important political
effects: it gives academic approval to a specific way of law making and to the laws that are
made that way and, thereby, it confirms and reinforces the given legal and political order. The
existing power structure is studied from an internal perspective and constructive suggestions
are made for improving its functioning, building on mainstream social liberal values.
As an ideology, the LAS model can fulfil the three functions described by Ricœur. To begin
with, on the most fundamental level, it contributes to the integration of society by representing
it as a “network of actors interacting with each other” 23 and working together harmoniously in
a collective effort to make law. As shown above, the LAS model seeks to make the process of
law making and implementation more democratic and inclusive. In opposition to supposedly
top-down conception of regulation defended by the LAI model, it conceptualises regulative
power as an interactive, two-way or bottom-up process, in which everyone involved can
participate. Subsequently, the LAS model helps to legitimate authority within the existing
power structure by stressing the responsive character of law making and the non-violent nature
of law enforcement. Opinions differ on the exact role and function of the state in its capacity
of centralized legislative power. In the interactive approach, the legislator is just one of the
many legal and political actors involved in the legislative process, and not necessarily the most
important one, whereas in the communicative approach the legislative power still has a key
role in initiating and co-ordinating the legislative process and eventually in determining and

22
As George H. Taylor puts it in the (very helpful) editor’s introduction to the English edition (Ricœur
1986: xix).
23
Van der Burg, as quoted in Sect. 4.2.
4 Legislation, Communication, and Authority 82

implementing the legal norms. In both cases, the legislature appears to be a benevolent, non-
authoritarian instance that responsibly and responsively, in a co-production with its citizens,
makes laws and takes care of their implementation. 24 In the legislative process, law and
morality are seen as intertwined: though not identical they are necessarily connected, feeding
and reinforcing each other like Siamese twins. 25 Ideally, the legal norm development parallels
the moral norm development, so that law enforcement may no longer be needed: “[W]here
moral norm development and legal norm development go hand in hand, actors working with
legal rules in the field are likely to be in conformity with the new legal rules before these rules
are enforced at all” (Poort 2013: 12).
Finally, the LAS model becomes distortive, in particular when it neglects the political
dimension of law making. Following the LAI model, it can be argued that the LAS model, by
focusing on the expressive and communicative functions of legislation, it ignores or downplays
its instrumental function. Law is not only an expression of values or a “piece of art”; it is also
used, or possibly abused, successfully or not, by state officials to achieve certain policy goals,
such as crime reduction, environmental protection, or economic growth. Moreover, the LAS
model seems to assume – counterfactually in my view – that law can do without exclusion and
violence. Inevitably, in the legislative process some values (or conceptions thereof) are
recognised at the expense of others (see Lindahl 1999). It is highly questionable, as Priban
(2016: 119) claims, that society can be integrated on a symbolic level by giving expression to
shared values. In a pluralist society, there is a fundamental disagreement on what constitutes
its fundamental values. Increasingly, the progressive values promoted by the LAS model are
challenged in the Western world from a conservative right-wing ideology. Furthermore, if
people would comply with legal norms voluntarily, there would be no need for law in the first
place. Unlike morality, law is a coercive order (as Kelsen 1967: 30–33) argues). Due to its
neglect of the political dimension of law making, the LAS model cannot give a fully
satisfactory account of the authority of law. As the LAI model rightly puts forward, the
authority of law cannot be made dependent on persuasion and participation. If the authority of
law in each and every case would depend on the people’s support, the legal system would
become very unstable. In most cases, most of the citizens do not participate directly in the
process of law making, so why should they consider the resulting norms to be legally binding?
Despite its general rejection of ideology, the LAI model offers an ideology of its own. This
ideology I would characterise as classic or conservative liberal. 26 It favours a seemingly
neutral, technocratic or functionalist, approach to the law. Law has value to the extent that it
serves as an instrument to achieve certain policy goals. Which goals the law should promote,
cannot be determined by scientific means. Legislation follows from a political decision taken
by the legislature. Social actors may take part in the legislative process, but it is the legislator
who has the final say. The LAI model considers values to be a matter of personal preference.
From its external perspective, it refrains from passing judgements on the content of the law.
However, it does care about its form, that is, the way in which legal norms are created and

24
Westerman (2005: 314) speaks of the “friendly face of the persuasive legislator” under which,
according to her, “some risks” are hidden from view, which are discussed in the next paragraph.
25
This metaphor is introduced in Van der Burg and Ippel (1994). On the relation between law and
morality from an interactive perspective, see also Van der Burg (2003).
26
I am focussing here on the political implications of the legislative theory presented by the LAI model.
So it is very well possible that legal philosophers whom I have connected to this model endorse of have
endorsed, in their private lives, another political ideology (as is the case, for instance, with Kelsen who
was a social-democrat, see Dyzenhaus 1999: chapter 3).
B. van Klink 83

applied. For law to count as valid law, the prescribed legal procedures have to be followed.
Only competent authorities belonging to the state are allowed to create and apply law. In
Kelsen’s Stufenbau, a norm can only be recognised as a legal norm, if a higher legal norm
authorises its creation. This formal condition has to secure that only those norms are included
in the legal system that are in accordance with the other, already accepted legal norms. In its
dedication to the Rule of Law, the LAI model shows a clear preference for two fundamental
values: freedom (in the negative sense 27) and (formal) equality. Freedom is guaranteed by the
classic liberal adagio, already expressed by Montesquieu, 28 that everything that is not explicitly
forbidden by law is allowed. In order to protect legal security, the law has to consist of strict
norms, which have to be applied in a strict way (in ordinary cases, by following the
conventional meaning of legal concepts). The law only addresses action, not attitudes, so
people remain free to think and believe whatever they want. Since legal norms are general,
they apply equally to all norm addressees alike. As a rule, the law does not allow for exceptions
and special privileges.
As an ideology, the LAI model can fulfil the fore-mentioned three functions. First and
foremost, it contributes to the integration of society by representing it as a legal order in which
everyone may participate who is authorised to create law, both state officials and citizens. The
legal order is conceived as an integrated system consisting of legal norms that do not conflict
with each other (following Kelsen’s principle of non-contradiction 29). Secondly, the LAI model
helps to legitimate authority within the existing power structure by providing for the conditions
for creating valid law. That is, the legal system established itself who has the authority to create
law and under what conditions. By definition, this authorisation is a merely formal attribution
of competency which says nothing about the law’s moral quality. Unlike the LAS model, the
LAI model does not require that the legislature issues legal norms in close cooperation with
various social actors (unless, of course, the law prescribes this).
Thirdly, the LAI model becomes distortive, when it neglects the normative, in particular
moral dimension of law making and the hermeneutic nature of law application. Following the
LAS model, it can be argued that the LAI model, by focusing on the instrumental function of
legislation, ignores or downplays its protective function. Law is not only created to not achieve
certain policy goals but also to protect fundamental rights, such as human dignity, fair trial and
the basic freedoms guaranteed in national constitutions and international treaties. Legal
interpretation is not merely a reproduction of supposedly ‘original’ or conventional meaning;
it is a productive activity as well in which new meanings are attached to legal concepts, even
in so-called standard cases. As Gadamer (1981: 419) argues, in every application the meaning
of the law changes to a greater or lesser extent. Moreover, the LAI model endorses a too simple
view of legal communication. It is an illusion to think, as the LAS model argues, that the law’s
meaning can be transferred without any distortion from the legislature to the norm addressees.
Due to its neglect of the normative (moral) dimension of law making, the LAI model does not
give a fully satisfactory account of authority. It assumes that the law’s authority is primarily a
matter of authorisation, but it cannot explain what constitutes the authority of this authorisation.
According to Kelsen (1973: 111), every legal norm is authorised by some higher legal norm
and, ultimately, by the basic norm (or Grundnorm). The acceptance of this basic norm, which
states that all norms following from the historically first constitution constitute law, is
considered to be a matter of political choice. If legal scholars accept the basic norm of a
particular order, they are able to describe the norms following from it as legal norms. If not,

27
See Berlin (2002: 170–178).
28
See Böckenförde (2013: 36).
29
Kelsen (1967: 70).
4 Legislation, Communication, and Authority 84

they conceive of the state’s actions as just an exercise of power. However, on what grounds
would one accept this basic norm? Citizens accept the authority of law because they consider
the legislative process and the laws resulting from it, for some reason or other, to be legitimate.
Because the LAI model refrains deliberately from giving any normative reasons, it cannot
really distinguish the authority of law (as normative power) from power.

4.5 The Culture of Justification

As it appears, the authority of law is dissolved either into power or into communication. In the
LAI model, authority becomes indistinguishable from power, since no reasons are offered for
accepting the state’s claim to legitimacy. In the LAS model, authority is a matter of endless
debate, since reasons have to be offered in each and every case for accepting this claim.
According to Hannah Arendt, however, authority is compatible with neither power nor
persuasion. In her view, authority excludes potestas or power, because “where force is used,
authority has failed” (Arendt 2006: 93). At the same time, it “is incompatible with persuasion,
which presupposes equality and works through a process of argumentation. Where arguments
are used, authority is left in abeyance” (ibid.). By giving reasons authority is deferred, because
the acceptance of authority is made dependent on the always insecure outcome of persuasion:
citizens may or may not accept the arguments offered by state officials (for instance, the
legislator or the judge). Although the authority of law cannot be matter of persuasion, it does
need social support to establish and sustain itself. In society, there has to be a general and
generally shared belief in the legitimacy of the current legal order. Otherwise, the order would
be perceived as purely coercive and, consequently, it would have no authority to issue legally
binding norms. 30
As Ricœur argues (see above), there always is a gap between the state’s claim to legitimacy
and the willingness to accept this claim by the citizens. It is the role of ideology to help bridging
this gap. Ideology offers a justificatory narrative which has to make people willing to accept
the law’s authority and to follow its prescriptions. Legislative theory is both a product and a
producer of ideology. It contains an account of why, and under what conditions, people should
accept the state’s claim to legitimacy. As discussed above, the LAI model is based on a formal
notion of authority. According to this notion, the authority of law is given and fixed and follows
from the formal requirements guiding the law’s creation and implementation. Legislation has
authority if it is created and applied in accordance with the prescribed procedures. Though it
refrains from making normative claims, the LAI model supports a classic or conservative
liberal ideology which cherishes freedom (in the negative sense) and (formal) equality. The
LAS model, on the other hand, is based on the conception of communicative authority. In this
conception, the authority of law is a gradual matter; it has to establish itself time and again by
persuading people that the law is created and applied in the prescribed (communicative and
interactive) way and, therefore, has to be followed. Legislation has authority to the extent that
it can be proven to be the outcome of social interaction between the legislator and various social
actors and to give expression to fundamental values. The LAS model reflects a social liberal
ideology which endorses progressive values such as freedom (in the positive sense 31 ),
(material) equality and solidarity.

30
On the relation between authority and persuasion in the field of adjudication, see Van Klink (2012 and
2016a).
31
See Berlin (2002: 180–182).
B. van Klink 85

Which ideology gives the best account of the authority of law (there are, of course, many
other accounts than the two presented here), is itself an ideological matter and, therefore, a
matter of individual political choice. I presume that the notion of communicative authority will
be the most appealing to modern man, who is reluctant to accept commands from a source
outside himself and wants to hear reasons first. But it will be very difficult, if not impossible,
in concrete cases to give reasons that will be persuasive for everyone. Given the value pluralism
in modern society I seriously doubt, with Priban, that law is able to integrate society on a
symbolic level by giving expression to shared values. Therefore, I feel more attracted to a
formal notion of authority which requires people to comply with the law although they may
not always share its values or subscribe to its content. However, what the LAI model fails to
provide is a moral justification of the formal notion it endorses. If authority equals normative
power (as I believe it does), it should be able to explain where its normativity derives from. 32
Vis-à-vis the LAS model I would not deny – given modern inclinations – that persuasion can
be a valuable, even necessary supplement to authority, when authority cannot stand on its own
feet. 33 But persuasion in concrete cases is only possible, in my view, if the existing legal and
political order in general is accepted as authoritative. A communicative notion of authority may
also undermine the current order, so I fear, when it makes the authority of law conditional on
fluctuating approval ratings. Moreover, it ignores or obscures the hierarchical relation between
ruler and ruled which is, as Arendt argues, essential to authority.
To end on a peaceful note, I would like to make a last suggestion how rightful claims of
both models could be combined. 34 That this is no easy task, is indicative of the crisis law’s
authority is facing in our present day and age or – as some would claim (not me!) – of its
transformation. As A. Daniel Oliver-Lalana points out in the introduction to this volume, the
creation and the review of law should be embedded in a “democratic culture of justification”:

In healthy constitutional systems, (elected) legislators are expected to give arguments in

public for the laws they pass. Otherwise, citizens can hardly ascertain their
reasonableness, and the same applies to courts where legislation is judicially reviewed. 35

On the one hand, I would argue that the culture of justification depends on a culture of
acceptance which makes it possible to give justifications and to come to some kind of
agreement and cooperation. The authority of law requires a general and generally shared belief
in the legitimacy of the current legal and political order, so that in principle – as the LAI model
claims – every legal norm that is created in accordance with its formal conditions is accepted
as valid law. Otherwise, the order would lack the stability necessary for its survival, since
everything would become a matter of endless negotiation and debate. (Whether this is a good
or bad thing, I do not intend to discuss here. Anyway, it would mean the end of law and its
authority as we know it.) The belief in the order’s legitimacy may spring from various sources:
it may be fuelled by different political ideologies which each gives its own justification of the
legal and political order at hand and its main purposes, basic principles and constitutive

32
Useful suggestions for such a normative account can be found in, e.g., Böckenförde (2006), Fuller
(1969) and Oakeshott (1999).
33
Van Klink (2012: 274–276).
34
I thank Wim Voermans for making a suggestion along these lines at the International Conference on
Legisprudence, ‘Conceptions and Misconceptions of Legislation’, University of Zaragoza, 22/24
February 2018.
35
The concept ‘democratic culture of justification’ is taken from Dyzenhaus (2015: 425–426). What the
culture of justification entails for the legislature, is further explored in part II of this volume.
4 Legislation, Communication, and Authority 86

practices; it may follow from a religious duty to accept leadership; or it may simply be a matter
of convenience, custom or tradition.
On the other hand, the culture of acceptance also needs to a certain extent a culture of
justification. We can no longer assume, empirically speaking, that people are prepared to
follow authority blindly and unconditionally. The belief in the order’s legitimacy – as the LAS
model argues – cannot be taken for granted anymore and needs some confirmation. In the
words of Leonard Cohen: “Your faith was strong, but you needed proof.” 36 That means that in
legislative practise the legislature must show respect for the basic principles that are considered
to be constitutive for the current order. If one believes, with the LAS model, that law has to be
created in a communicative and interactive way and that the relation between legislator and
citizens has to be reciprocal, the legislative practise should reflect to some degree these ideals.
As Van der Burg (2014: 107) argues (following Fuller), there must be a “continuing practise
of legality”. Whether there is a sufficient correspondence between ideal theory and reality, is a
matter of individual assessment. Van der Burg (2014: 167) believes that fundamental values
such as legality, justice and democracy are realised, at least to some, minimally acceptable
extent, in our societies: “There is a minimum of realization and a promise of progressive
interpretation. It is this dual nature of law which provides for a necessary yet contingent moral
quality of law in Western democracies.” As long as this belief is sustained, law can exercise its
authority.
What I intended to demonstrate here is that legislative theory is no neutral affair. One could
say, as a variation on another pop song, that legislative theory is the legislature’s little helper.
As an ideology it supports the powers that be – including the legislator and any other legal
actor engaged in the business of law making – to establish and maintain their authority. This
may be not so problematic when ideology is used constructively to strengthen legitimate
authority. However, ideology becomes destructive when it paints a distorted picture of reality
and gives credit to dubious legislative practices. By comparing the two models of law, I have
attempted to show that both models are susceptible to ideological misrepresentation and
misuse. Because of this ‘dark face’ of ideology, legal scholars have to become more conscious
and critical about the legislative theory they endorse.

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Chapter 5
Legislation and Nudging. Towards a Suitable Definition

Silvia Zorzetto and Francesco Ferraro *

Abstract “Nudging” is commonly seen as an appealing form of “smart legislation” based on the
findings of behavioural sciences and alternative to traditional forms of regulation. However,
notwithstanding the ever increasing references and a growing body of literature on its acceptability, a
proper definition of the concept seems still lacking, since all the (scarce) attempts to date have only
provided over- or under-inclusive definitions. This chapter purports to offer a more plausible definition.
Firstly, the received view and especially Thaler’s and Sunstein’s descriptions of nudging will be
examined and subjected to a first critical assessment. Secondly, a few examples will be made of policies
enacted all around the world which are usually referred to as cases of nudging. Thirdly, some of the
elements which have often been associated to nudging as its definitional features will be tested against
the set of examples: such test will show that most of those elements must be done away with. Lastly, a
“minimal” definition will be offered. While allowing us to distinguish nudging from other forms of
conduct-influencing interventions, the minimal definition will exclude many features as its necessary
conditions: among others, those related to specific ends and political ideologies.
Keywords Nudge • Smart legislation • Choice architecture • Behavioural sciences • Liberal Paternalism

5.1 Nudging: A Smart or an Unacceptable Tool for Legislators?

Nudging is becoming increasingly popular both as a policy instrument and as a subject for
discussion in academia. 1 While political and moral philosophers discuss its acceptability and
the values it might promote or, conversely, restrict, a large number of studies in behavioural
economics assess its efficacy and develop its uses. Legislators, institutions and organizations,
all around the world, put in practice many initiatives and regulations that evoke nudging, too. 2
In 2015, an Executive Order of the then President of the United States of America, Barack
Obama, urged all executive departments and agencies to develop and apply strategies making

S. Zorzetto () and F. Ferraro ()

Universitá degli studi di Milano, Dipartimento di Scienze Giuridiche “Cesare Beccaria”
Via Festa del Perdono 7, 20121 Milano (Italy)
e-mails: [email protected] │ [email protected] *

1
See e.g. Sunstein, Reisch, Rauber (2017). Among an extensive literature see also e.g. Mathis and Tor
(2016); Alemanno and Sibony (2015); Alemanno and Spina (2014); Casu (2015).
2
See e.g. iNudgeyou – The Applied Behavioural Science Group; TEN – The European Nudging
Network; Nudge-it European Commission-funded FP7 project; Ideas42 group, project and B-HUB; The
Danish Nudging Network; Nudge Italia; Centro di Ricerca di Epistemologia Sperimentale e Applicata
(CRESA); Ly and Dilip (2013); Lourenço et al. (2016); OECD (2017); The Nudge Sustainability Hub.
5 Legislation and Nudging 90

use of the latest findings in behavioural sciences. The EO explicitly mentioned the presentation
and structure of programmes offering choices and the arrangement of default options, both of
which, as we will see, are key features of nudging. 3 Obama had previously chosen Cass
Sunstein, one of the leaders of the “nudge revolution”, as the head of the Office of Information
and Regulatory Affairs (OIRA). In 2010 the other most famous apostle of nudging, the now
Nobel prize Richard Thaler, was called by former UK’s Prime Minister David Cameron to lead
the Behavioural Insights Team (BIT), informally known as “Nudge Unit”. The BIT represented
the first such unit set up by a government to use systematically psychological insights in order
to achieve policy goals; the initial scepticism surrounding its action was soon replaced by
worldwide interest, both on the part of national governments and of international institutions
such as the United Nations and the World Bank. 4 In a very short time, also thanks to the
propagation power of the internet, nudging has begun to appear as a very fashionable and
attractive affair, which involves a significant turnover. Nonetheless, nudging is also a victim
of its own success, as a target of plentiful criticisms. Oftentimes, what we behold is a principled
struggle between, on the one side, those who uncritically portray nudging as a smart tool for
making people’s life simpler, safer, or easier, 5 and, on the other side, those who stigmatize it
as a surreptitious vehicle for manipulating people’s behaviour in the name of hypocritical
paternalism. 6
As a methodological criterion, not only will we set aside both the rhetorical approval and
the blind disapproval of nudging, but we will also avoid taking normative stances on the
phenomenon. In fact, it has already been observed that, despite the vast literature on the subject
and the multitude of policies which have been associated to it around the world, an appropriate
definition of nudging seems still lacking. 7 This makes it difficult to bring theoretical debates
closer to the interpretation of actual phenomena, that is, to assess in each case whether we are
beholding nudging. This question, of course, should be preliminary to every attempt at judging
whether nudging in general is an acceptable practice, both from the moral point of view and
from that of legal (constitutional) principles and values into contemporary democracies. The
same question should also precede the evaluation of specific nudge-related policies. Of course,
it could also turn out that nudging, after all, is not a new phenomenon or that it does not pose
new problems at all as another instrument into the legislator’s toolbox. Some forms of nudging
actually look like a more fine-tuned application of traditional regulation.
In our contribution we will try to bring to light some deficiencies into the current literature
and to discuss some cases of presumed nudging regulation, assuming that a clarification cannot
neglect the phenomenon as it is and its practical relevance in the legal domain. Hopefully, this
will contribute to a definition of “nudging” that will not prove under-, nor over-, inclusive.
Such a definition would provide a useful tool not only for academic research, but also for the
assessment of specific legislative or executive policies in judicial review.
In the first part of our chapter, we will analyse the mainstream on nudging, especially with
regard to general descriptions and scattered elements which could be taken into consideration
to attempt a definition of the term. In the second part we will outline some paradigmatic cases
of regulations or actions carried on in Europe and other countries in the areas of food, wealth,
education, transport, and so forth. The examples chosen will be relatively undisputed cases of

3
The White House President Barack Obama (2015).
4
Foulkes (2017).
5
See e.g. Sunstein (2014b).
6
See e.g. McCrudden and King (2016: 75–140); Wilkinson (2013: 341–355).
7
Hansen (2016).
S. Zorzetto and F. Ferraro 91

nudging. In the third and last part, we will review some final remarks and put forward some
questions that are open to debate, with the aim of providing a definition of “nudging”.
As we will try to show, the majority of, or even all, the concepts of nudging most widely
presupposed seem over-inclusive or under-inclusive, if we take into consideration the actual
phenomena which are usually referred to as “nudges” into common parlance. Moreover, far
from assuming one simple concept of nudging as the baseline for their normative theories, most
authors rather construe and maintain overblown multi-faceted conceptions that include
heterogeneous political, ethical and, in general, broad philosophical assumptions, which
nonetheless are not inevitably linked with nudging. Therefore, our purpose is to trace out a
minimal concept of nudging and to show some elementary distinctions that can be useful to
clarify its different conceptions.

5.2 The Received View: Econs vs. Humans

The description of nudging offered by Richard Thaler and Cass R. Sunstein in Nudge (2009)
can be placed as the jumping-off point of our analysis as it represents the most recognized and
influential conception in the current panorama.
As is well known, Thaler and Sunstein conceive of nudging as a regulatory tool which bears
on “choice architecture”, 8 that is, the organization of the context in which people make
decisions. The very idea of an architecture of choices—to which we will return in the last part—
is fascinating, albeit metaphorical. Such metaphor of the architecture is very instructive and
evocative as it refers to the general problem of how and to what extent behaviours are context-
dependent and contexts, in turn, are artifactual.
Nudging, as a part or a form of “choice architecture”, can influence the content of the
people’s decisions by arranging the conditions and requirements in which they are made. More
specifically, nudging, as Thaler and Sunstein explain, 9 is an “aspect of the choice architecture
that alters people’s behaviour in a predictable way without forbidding any options or
significantly changing their economic incentives”; “to count as a mere nudge, the intervention
must be easy and cheap to avoid”. 10 Therefore, predictability, as well as preserving the
possibility of different courses of action, are key-features of nudging in this view.
Furthermore, like many other scholars, they restrict their enquiry almost exclusively to
nudging by the government and public institutions in general as opposed to nudging by private
actors. 11 This could be misleading, since nudging cannot be seen as pertaining exclusively to
the public sphere. As we will see with the help of a few examples, nudges seem indifferently
applicable to both private and public domains. It must be pointed out that what is relevant is
the social or interpersonal dimension of nudges, which normally do not involve a sole person
or a standalone conduct, but rather collective behaviours, regardless of the public or private
nature of the nudgers.
Thaler and Sunstein also assign a specific function to nudges: namely, that of improving the
decisions of agents, by circumventing obstacles to adequate decision-making such as biases
and short-term temptations. Humans, they maintain, are not like “Econs”, i.e. individuals who

8
Thaler and Sunstein (2009: 6). See also Sunstein (2015: 450–452).
9
Thaler and Sunstein (2009: 6).
10
Thaler and Sunstein (2009: 6).
11
See e.g. Hansen and Jespersen (2013: 3–28).
5 Legislation and Nudging 92

respond to the homo oeconomicus model as presupposed by classical economic theory. Econs
are fully rational in the sense that they have a consistent and stable set of preferences,
sequentially ordered; they always think and act so to maximize the satisfaction of those
preferences, i.e. their utility; they possess full information, “unlimited cognitive abilities” to
process that information, and no time constraints to reach their decisions accordingly. Thanks
to these features, Econs make reliable predictions. 12
Humans’ preferences, on the contrary, are not always ordered and consistent; moreover,
human preferences and choices are unstable, since they are strongly context-dependent and
often endogenous to social contexts. 13 Consequently, Humans do not unfailingly pursue a
coherent plan of action which maximizes their utility, since they are subject to temptations and
to weakness of will; furthermore, they have limited cognitive abilities and often lack relevant
information and the time to obtain and process it. In brief, their rationality is bounded. 14
However, although the opposition Econs vs. Humans is a leitmotif in literature upon
nudging, in our view it is spurious and trivial. On one side, as the abstract model of homo
oeconomicus is unrealistic, it is also a misleading point of reference or term of comparison. On
the other side, that humans’ capabilities and abilities are context-dependent is unquestionable,
but we could say that this is the beginning and not the end of the story. In other words, as
behavioural researchers show, only concrete empirical analysis of behaviours can help us to
achieve an in-depth comprehension of our archetypal ideas, biases, errors, and implicit
assumptions. Even so, this opposition Econs vs. Humans is a general platitude, which does not
affect exclusively nudging.
Thaler and Sunstein endorse the view according to which, in making decisions, humans do
not always resort to what psychologists and neuroscientists call the “Reflective System” of
thinking, which is a deliberate and self-conscious system of thought (also referred to as
“System 2”). They often rely on their “Automatic System” (also referred to as “System 1”)
which governs fast, intuitive reactions (Thaler and Sunstein 2009: 21–24). Unlike System 2,
System 1 is subjected to cognitive biases that distort judgement and flaw decision making. By
succumbing to biases, humans make poor choices, in the sense that they do not maximize their
preference satisfaction. In this perspective, nudging can help humans in making better choices,
notwithstanding their biased and fallible nature.15
Thus, in Thaler and Sunstein’s view, nudging is a tool available for humans to get closer to
Econs, that is to say, very briefly, to make choices corresponding to those of Econs and to
pursue the maximization of utility, i.e. of their preference satisfaction. We will come back later
to this (very common) idea of nudging, as it marks out more the conception of these authors
and of their followers, rather than being a material feature of the phenomena. As we will try to
show with the help of some examples, nudging is a general tool available to achieve a large
variety of ends or purposes and it would be misleading to build into its concept a necessary
relationship with certain predetermined ends or purposes.

12
Thaler and Sunstein (2009: 6–9).
13
Moles (2015: 646).
14
Tor (2016). For some scholars, neither Econs nor Humans can make perfect forecasts and both are
subject to errors, but the latter tend to make mistakes along predictable directions, determined by certain
common aspects of human psychology.
15
Thaler and Sunstein (2009: 9): “[…] a nudge is any factor that significantly alters the behavior of
Humans, even though it would be ignored by Econs. Econs respond primarily to incentives. […] Humans
respond to incentives too, but they are also influenced by nudges”.
S. Zorzetto and F. Ferraro 93

Moreover, although it is quite common to draw a relation between nudging and utility or
“economic rationality”, such relation is disputable. To a closer analysis, nudging can be an
alternative tool with respect to economic incentives, but it consists, basically, in actions or
interventions that deal with concrete human behaviours which do not have an immediate
economic substratum. Of course, if we adopt a broad view of economics and economic
rationality that covers, directly or not, each and all spheres of human life, also nudging will be
coloured in the same light. Yet, nudging per se may be an economically neutral or rationally
neutral behavioural intervention, which does not substantially constrain choice, nor does it alter
economic incentives.16
Another issue, as mentioned above, regards the interplay allegedly existing, at least in the
opinion of some scholars, between nudges and economic incentives. While “[p]erfectly rational
agents are sensitive to changes in price and will respond to incentives according to their own
utility function” (Moles 2015: 650), they will not respond to nudges, that will be fitting only
for humans, due to limitations in their rationality. Following this line of thought, nudges and
incentives would be two radically alternative instruments in the legislator’s toolbox.
This view, however, would rule out many cases related, for instance, to fines or taxes where
small incentives can actually qualify as nudges and vice versa. Both incentives and nudges
obtain their effect not in force of relevant changes in the cost of different options, but rather
because of changes in the perceived utility. People could react irrationally to minimal changes
in the cost of an option, for instance when they have to pay (even a very small and purely
symbolic price) for something that was previously free, or when they can purchase with a
discount something that they had not even taken into account before the discount was applied.
In these cases, incentives operate indirectly, not qua incentives but rather due to their “nudging
effect”. This also gives rise to epistemic uncertainty regarding certain behavioural
interventions, which could qualify or not as nudging according to what actually determines the
subject’s choice. Some agents may be influenced by the consideration of the costs involved,
while some others by non-economic factors. 17 It seems, then, that the same intervention could
be a nudge for some, while it will constitute a proper incentive for others.
The characterization of nudging as something that affects irrational humans, but would not
work on rational economic agents, draws attention to another controversial issue. Nudges seem
to work by appealing to System 1 decision-making, that is, they influence choices made by
agents who do not resort to deliberate and reflective thinking. In particular, according to this
view nudging appeals to “shallow cognitive processes” that share three properties: “(1) they
are fast; (2) the ‘cognitive miser’ is inclined to rely on them because they consume few
resources; (3) they yield responses that are not the result of full-blown deliberation” (Saghai
2013: 489). We can conceive of “shallow cognitive processes” as a broader category than
System 1 or “Automatic System”, which does not rule out the possibility of only partially
conscious decision-making, nor does it commit us to the controversial theory of two entirely
different systems. 18 That is, if nudging is meant to improve choices and make them more
rational, it does so by exploiting those shortcomings of irrational decision-making that (in
Thaler’s and Sunstein’s view) make Humans different from Econs. In other words, according
to this view nudges actually trigger “shallow cognitive processes” that bypass, partially or
entirely, reflective deliberation. 19 In this way nudges supposedly mimic and replace rational

16
Tor (2016); also Hansen (2016: 9–10).
17
Moles (2015: 650–651).
18
Moles (2015: 649 n. 21).
19
Saghai (2013: 489).
5 Legislation and Nudging 94

decision-making by helping people to achieve the same choices it would (presumptively) yield,
rather than by improving the quality of the decision-making process itself.
The above characterization, however, while very widespread,20 is nonetheless controvertible.
Strictly tying nudging to the exploitation of cognitive shortcomings and biases (although with
the purpose of obtaining the same outcomes as careful, fully rational decision-making) leaves
out many cases of nudges grounded on information, which are aimed at increasing transparency
and to stimulate, obliquely, reflective deliberation: for instance, simple information provision,
such as warnings on the risks of smoking on cigarette packs and many other alerts or
information about the characteristics of foods are nudges. 21 As we will see in the next
paragraph, the typical feature of nudging is not a straightforward connection with the activation
or the exploitation of System 1 or “Automatic System”, but rather the circumstance that the
guidelines of behaviour are embedded in the context. It is typical of nudges that the suggested
or desired conduct is not manifest, much less qualified as due or forbidden. Usually—though
not necessarily—the final aim of nudging remains hidden in the general “architecture” built up
by the nudger; only some clues of the “architecture” are at best perceivable or only intermediate
aims are apparent. Think, for instance, of nudges that dissuade people from smoking by
informing about the risks and side-effects by using unpleasant pictures. We will provide a few
more examples in the next paragraph.
For some scholars, alerts and reminders (for instance, of the time left to complete the tax
return) 22 would fall outside of the scope of nudging. That is to say, some authors draw a
distinction between the “nudge strategy” and the “think strategy”, assuming that the first is
indeed very different from the second, on both sides, that of the policymaker and of the
addressed people. 23 More specifically, the effort required from the latter and the attitude and
disposition required from the former would be different in the case of nudging from the case
of policies addressed to reflective agents.
But, as said, confining nudging to non-think strategies seems under-inclusive. The
providing of information and the use of reminders or other similar tools actually are a form of
gentle push to modify the people’s attitudes in order to provoke the desired decisions. All these
nudges are grounded on selected data and are not neutrally informative; all information is
instrumental to achieving the ends of the nudger. The general assumption is that providing
selected information pushes people away from shallow cognitive processes and towards
reflective thinking on their actions. If not pushed, people would automatically make impulsive
decisions, while nudges seek to overcome the unreflective level and stimulate agents to recur
to reflective thinking, in order to choose more carefully. For instance, the already mentioned
information regarding smoking will not be full and will not focus on the pleasures of smoking,
or the presentation of smoking role models, but rather on the scary perspective of its risks and

20
See, for instance, the 2011 House of Lords Select Committee report (Science and Technology
Committee – Second Report – Behaviour Change), which states that “[…] interventions which may be
described as "nudging" are not synonymous with, but rather are a subset of, non-regulatory interventions
[...] not all non-regulatory interventions are nudges in the standard understanding of the term. Nudges
prompt choices without getting people to consider their options consciously, and therefore do not include
openly persuasive interventions such as media campaigns and the straightforward provision of
information” (para. 2.9).
21
Thaler and Sunstein (2009: 200–206) include these latter cases into nudging and dedicate a section of
their book to “Feedback and Information”.
22
Baldwin (2014).
23
John, Smith, and Stoker (2009).
S. Zorzetto and F. Ferraro 95

damages. An appeal to emotions, as minimal as it could be, will be necessary to push smokers
to reconsider their choices in a more reflective way.
Therefore, information provision can be seen as nudging meant to push people to do
something they would not do, were it for their automatic system or shallow cognitive processes:
namely, start using more considerate and reflective decision processes. One way to see this is
as a sort of second-level nudging, which mimics what rational agents would preliminarily
decide to do when confronted with an occasion for choice: that is, they would decide to make
that choice in a rational, reflective way.24
We can assume, then, as a safe step towards a suitable definition of the concept, that nudging
seeks to orientate people’s choices on the assumption that decision making processes are often
unsatisfactory (for instance, because of cognitive biases and irrationality) and may require
external intervention. Nudges need not always rely on those very biases and deliberative
shortcomings to achieve their ends. They might exploit, or even trigger, decisional weaknesses
(biases etc.) in order to improve the decision’s outcomes (the final choices), but can also be
applied to enhance the very process of decision, so that people achieve those same outcomes
through their own reflective thinking. 25 In this latter case, we have what Robert Baldwin (2014)
has called “First Degree nudges”, which “[…] respect the decision-making autonomy of the
individual and enhance reflective decision-making”. Such nudges, in Baldwin’s view, can be
distinguished from two further levels of intervention, namely Second and Third Degree nudges,
which are supposedly more intrusive and also more problematic from the moral point of view,
since they exploit behavioural limitations and do not foster more careful and rational decision-
making. Another way to put it is that nudges of the First Degree are actually instruments
supporting choice, which often work by slowing down the individuals’ decisions and
increasing awareness of bias. 26 Think, for instance, of choice architecture that, instead of
establishing an opt-out or opt-in default line (for, say, a retirement plan or health insurance),
actually obliges the addressees to choose between different options. While default choices
would exploit shallow cognitive processes with their biases (for example, the status quo bias,
i.e. the tendency to stick with the current situation),27 required choice is a kind of nudging
which blocks or suspends non-reflective decision-making in order to activate reflection.

24
Incidentally, the provision of full and neutral information, not selected nor presented in a way that
triggers emotional responses, presents us with a difficult borderline case. On the one hand, it could be
seen as addressing mainly those agents who have already decided to make a considerate, careful choice.
On the other hand, the very fact that full information is provided for the first time, in cases where it was
not, might act on unreflective thinking by providing an alert that pushes the subject towards reflective
thinking. Like in the aforementioned case of incentives, also with provision of full information we face
epistemic uncertainty as regards its nudge or non-nudge nature: some individuals may be affected by its
(arguably very slight) emotional push towards more careful decision-making, while others may simply
use that information once they have already decided to choose in the most rational and reflective possible
way.
25
Contra Moles (2015: 647).
26
van Aaken (2015). This author distinguishes between “Isolated Instruments Supporting Choice” and
“Communicative Instruments Supporting Choice”. The former target isolated individuals who have to
make decisions: examples are “regret mechanisms” that allow individuals to reverse decisions without
costs, like pre-established waiting periods in divorce law. The latter focuses on communicative
rationality and deliberation: e.g., the obligation in some clinical trials to have a consultation before the
decision, or the duty for bankers to assess whether a potential investor understands relevant information.
27
Thaler and Sunstein (2009: 37–39).
5 Legislation and Nudging 96

5.3 Nudges All Around the World

Aside from all the theoretical debates, nudges are actually a tool widely put in place in many
countries and in different contexts by legal authorities (legislators, administrative agencies,
etc.) and also private institutions and agencies. They are usually identified as belonging to the
broad category of “soft law” or, to use a notion more à la page nowadays, to the so-called
“smart regulation”. But, in truth, the connections and the possible overlapping between
nudging and the law are contentious as it is disputable whether nudging may be a form of
legally binding regulation. The boundaries between smart regulation and nudging are not clear-
cut also because of the vague content of the latter. According to a commonplace, smart
regulation itself can be meant as a kind of nudging applied to the process of making regulations
(in order to make them better, i.e. closer to people, more transparent and effective).28 In the
current practice, on one hand nudging appears as a more general phenomenon, which is not
limited to normative procedures of legal authorities, 29 nor even to production of law in general;
on the other hand, smart regulations actually include further provisions different from nudges.
Although it goes beyond the present scope to make a thorough analysis of whether and how
nudging is able to become a source of law, it is a matter of fact that legal authorities, especially
administrative bodies and agencies as well as international organizations and institutions, adopt
nudges in carrying their policies on. Nudges are very frequent in many fields such as food,
health, financial services, education, environment protection, technology, energy exploitation,
transports, and so forth. 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.
Therefore, taking into account the immense number of nudges currently practiced, a
selection is indispensable and is inevitably random. However, we are confident that the cases
that we will bring to attention will be demonstrative both of the variety of the phenomena
labelled as nudging and their relevant common features.
Nudge can tackle food waste in the restaurants. A simple intervention has been carried out
to increase the demand for doggy bags. While clients usually have to ask to pack their leftovers
in a doggy bag, in the experiment the default rule was changed to automatically provide with
a doggy bag when clients had uneaten food on plates. In front of each client, a double-sided
poker-chip, with two sides coloured, respectively green and red, was placed. The poker-chip
was placed with the green side up by default so that the customers had to turn it up on the red
side to opt-out. 30 As this simple example show, often nudges depend on inertia or certain
default reactions of agents. 31
Many nudges regard food consumption, although they have health as their final scope. 32
For example, since sugar is unhealthy if consumed in excess, in order to reduce its consumption
with hot beverages 7,5g sugar packets were replaced with 4g packets. This nudge consists in

28
See e.g. European Commission (2015; 2016b; 2016c). All documents are available and intended to be
used as a series of web-tools in the official web site of the EC.
29
For The Economist (2015), “the nudge revolution encourages the use by government of plain
language; favours the design of policies that actually take account of real-world behaviour; and allows
the testing of ideas on a small scale before wider implementation”.
30
http://tenudge.eu/project/using-the-default-rule-to-increase-the-demand-of-doggy-bags-in-restaurants
31
See e.g. Sunstein (2014b); Leone (2017).
32
See e.g. Cohen, Fernandez Lynch and Robertson (2016).
S. Zorzetto and F. Ferraro 97

changing the default of units of sugar because people frame their choice about the amount of
sugar to pour in drinks in units (packets) rather than considering the effective amount (in grams)
contained in the packets. The impact of nudge in terms of average of sugar consumed was
significant, showing a reduction in sugar intake per person.33
On the assumption that eating more vegetables and fruits is good for a healthy diet and a
sustainable lifestyle, nudges have been experimented to increase the consumption of seasonal
products. The products offered in season are deemed to be preferable from the environmental
point of view too, as they do not require, for instance, polluting processes of conservation and
preservation in refrigerators, which absorb lots of energy. For instance, in a Belgian store, four
interventions were combined to test the increasing of sales of seasonal products, taking into
consideration that consumers often ignore the seasonality of fruits and vegetables and think
that those products are less tasty and time-consuming to be eatable. 34 No explicit mentioning
of health or sustainability was made. First, posters with shape mimicry pictures presenting
walnuts as popcorn with the tag-line ‘the best of the season’ were pinned on a visible place on
the shelves of the seasonal products. Second, to enhance accessibility they were placed together
on a central block in the fruits and vegetable department. Third, a large sign indicated that the
products on the central shelves were seasonal products. Finally, a suggestion of preparation
(“tasty with mashed potatoes”) was added. The outcome of the test was that consumers resulted
more inclined to buy seasonal products because of (1) the applied priming mechanism, (2) the
enhanced accessibility and (3) the improved implicit knowledge about seasonality. However,
the total amount that consumers spent on vegetables and fruits (be it seasonal products or not)
did not change. In short, consumers did not buy more vegetables and fruits but shifted towards
seasonal ones. Finally, (4) adding tag-line signs with preparation suggestions for a particular
product increased the sales of the targeted product.
Biodiversity is in decline worldwide and although protected areas are one of the most
popular tools for biodiversity conservation, nudging may help for increasing the conservation
efforts on private land. On this field, nudges are still quite rare as the majority of programmes
are market-based and involve compensation for carrying out conservation actions. An
alternative option is a voluntary non-monetary approach, which aims to encourage behaviour
change by making an appeal not to financial rewards, but rather to the value of nature (and its
benefits), morality, or social responsibility. Some researchers describe a number of cases35,
such as the Finnish programme for protecting nests of forest hawks under threat from logging
in private forests, and the French programme for protecting Montagu’s harrier nests in
farmlands. Another example of nudge aimed to reduce seabird mortality is to make easily
available, as default, longline fishery equipment that reduces by design seabird by-catch and to
sell such equipment along with the best practice guides on how to reduce seabird by-catch. 36
With reference to energy efficiency of electrical appliance, 37 some studies show how the
immediate impact of information is relevant in making choices. As is well-known, in the EU
the energy efficiency of electrical appliance was rated on a seven-point coloured scale, from A
to G. In 2010, the labels of several appliances were redesigned to keep up with technological
improvements and the new scale had three green grades above class A (A+++, A++ and A+)
and the lowest grade became D. A Danish study found that the new labels were only half as

33
See http://tenudge.eu/project/less-sugar-coffee-default/
34
See http://tenudge.eu/project/greens-seasonal-nudging-shoppers-towards-seasonable-fruits-vegetables-
supermarket/
35
Santangeli et al. (2016: 211–213).
36
Santangeli et al. (2016: 213).
37
Ölander and Thøgersen (2014).
5 Legislation and Nudging 98

effective as the original labels in persuading consumers to buy the most energy-efficient TV.
Consumers judged all classes with an A as being more energy efficient than other letters and
did not differentiate between the upper classes as clearly as before. Another example of nudge
regards installing smart meters, by default, as an essential part of upgrading the electricity grid
system. Due to the fact that some consumers are wary about letting their supplier remotely
control their electricity consumption, a function of some smart meters, a Danish survey found
that with an opt-out option, almost 50% more people agreed to the installation than by asking
them to opt-in.
Nudging appears also in the sector of transports, for instance, in order to increase safety
standards. In 2012, West Japan Railway Company registered an increased number of collisions
near railroads. Based on a vast survey, investigators recognised a specific behavioural pattern
that appeared to be one of the major causes of accidents: 1900 out of 3300 incidents involved
people that had been drinking alcohol and 60% (1140) were drunk people who had been sitting
on a platform bench and then suddenly had risen and rushed forward onto the rails. The measure
adopted was rotating the platform benches by 90 degrees so that the drunk train passengers
who lose balance will fall down onto the platform rather than onto the rails.38
A team of researchers from the World Bank and ideas42 is developing a series of
experiments on the mothers of Madagascar to try to reduce the problem of chronical
malnutrition of children 39. Every two months, 800 women gather in a church courtyard in the
village of Tritriva to receive cash from the Malagasy government. Mothers of six-to ten-year-
olds get the payment only if their children have attended school regularly. For those with
children under five, the payment is due and matched with information about family health and
nutrition, providing selected stickers with pictures of nutritious foods; in addition, some women
are appointed as community leaders and trained in parenting and children’s health.
Another example comes from South Africa, where more than 5 million people have HIV.
Teenage girls are three times more likely to be infected than boys being of the same age. A
research found that many girls were choosing to have sex with older men believing them to be
safer partners, when they were, in fact, more likely to be HIV positive. Researchers designed
a prototype computer-based “HIV risk game” to correct this misperception and tested it with
teenagers from the target population in South Africa so that they could find out whether it was
more effective than a traditional approach to providing information about HIV risk. 40
In India, more than 600 million people have no access to a toilet; but even where proper
sanitation has been installed, people tend not to want to use latrines. The team at Gini will be
helping the Indian government work out how to meet its target to eliminate open defecation by
2019, measuring the success of certain interventions, such as the campaign “no toilet, no bride”,

38
See http://inudgeyou.com/en/could-a-nudge-improve-safety-at-railway-platforms. Given that collisions
between a train and a person is the most common cause of death nearby railroads in Denmark, as well
as the rest of Europe, BAR transport og engros, a Danish council for promoting health and safety,
reached out to identify problematic behavioural patterns. The project resulted in a number of solution
concepts to reduce accidents near the railway tracks, taking into account that they happen often when
people walk too closely to the platform edge during crowded peak hours, due to people being overly
preoccupied with smartphones, etc.
39
See https://www.theguardian.com/global-development-professionals-network/2016/mar/04/world-bank-
nudging-attitudes-health-hygiene
40
See http://www.ideas42.org/wp-content/uploads/2015/05/ideas42_WhitePaper_HIVRisks_v4-1.pdf
S. Zorzetto and F. Ferraro 99

an initiative that asks parents to ensure their daughters are not married to men whose villages
have no toilet.41
Nudging can promote waste sorting too. In 2013, the Department of Planning and
Sustainability of the Government of Catalonia funded a project aimed at promoting door-to-
door separate waste collection and reducing waste. When municipalities with door-to-door
collection schemes provide higher collection frequencies for recyclables than for non-
recyclables, they change the choice architecture and thereby nudge citizens toward separate
garbage sorting. 42
The classic study “Do Defaults Save Lives?” 43 illustrates the influence of defaults on organ
donations and the mismatch between positive public attitudes toward organ donation and the
actual low share of people registered as potential donors. This mismatch is likely due to
people’s tendency to avoid the cognitive and emotional effort associated with signing a donor
card. As a remedy, Spain introduced a soft opt-out system, whereby personal consent is
presumed, but organs cannot be transplanted without family consent and transplant
coordinators at each hospital support the system of organ donations.
The Organisation for Economic Cooperation and Development also pays close attention to
nudging. Among many cases, we can recall three examples that show how nudges work. A first
example deals with the scarcity of water in Costa Rica, which forced the government to put up
to reduce water consumption by citizens. On the basis of behavioural studies, the government
of Belén modified water customer bills by expressly comparing the consumption of water with
those of the neighbours and of city-wide consumption data and giving a happy or a frowning
face rate depending on the outcome of such comparisons. Moreover, the government asked
citizens for writing on a postcard their water consumption indicating also six tips to reduce it.
The experiment showed that city-wide comparison was fairly ineffective, while the comparison
with neighbours and the request of filling in postcards were more effective actions that support
a quite significant save of water (equivalent of 6,720 cubic meters saved per month, or 188,000
showers). Another nudge was tested in Cape Town, South Africa, with the aim to reduce
unsafety and the risk of being a victim of violent crimes in practicing free-time activities,
especially by youngers and during the week-ends. The idea was to implement a digital
application (called “Safety Tool”) to encourage young people to plan activities in self-selected
safer environments. The experiment result was that youth that used the “Safety Tool” were
50% less likely to participate in unsafe activities, 61% more likely to feel safe, and 50% less
likely to experience any danger, including violent crime. Such experiment was based on some
assumption as follows: (i) risk is greatest at the week-end; (ii) youth feel safest in socially and
geographically familiar environment; (iii) crime is mostly opportunistic; and (iv) young people
do not use to plan week activities and not take care of many alternatives among them. The third
example is related to the increase of antimicrobial resistance as a consequence of excessively
antibiotic prescriptions made by doctors even when other effective forms of care would be
available. In Great Britain, to try to fight against this trend, some doctors among the top 20%
who had prescribed most antibiotics received a leaflet on reducing antibiotics, while some
others information that their antibiotics prescription rate exceeded 80% of doctors in their area.
As a result, doctors involved in the test reduced antibiotics prescription to a small extent (the
registered reduction has been only 3,3%).

41
Stopnitzky (2017: 269–282).
42
European Commission (2016a), https://ec.europa.eu/jrc/sites/jrcsh/files/jrc-biap2016-spain_en.pdf
43
Davidai, Gilovich, and Ross (2012: 15201–15205).
5 Legislation and Nudging 100

The abovementioned examples are instructive per se and also because they are openly
explained and presented as successful instances of the phenomenon. Although this is not the
right place to evaluate their impact and outcomes, they are useful to outline some common
general features of nudging.
First of all, as the examples show, nudges are fundamentally linked with certain behavioural
assumptions and convey a model of approved or suggested behaviour. Although they are
construed in many different ways—for instance, with or without the use of language, depending
on the circumstances—nudges are devoted to fill the gap between the ideal behaviour that is
assumed as exemplum by the nudger and the real behaviour of people as it emerges from
behavioural sciences surveys.
On that account nudges fulfil a normative function from a general pragmatic standpoint, but
this normative final aim is, so to say, “external” as the addressed or desired behaviour is never
directly prescribed, but rather embedded in the intervention. In this respect, nudging acts as an
indirect guide of human behaviour, that essentially avoids whatever authoritative and
mandatory element 44. It is also fundamentally based on empirical, psychological or behavioural
surveys carried out with regard to a concrete and specific pragmatic context of human choices.
Typical examples are the alerts and reminders, for instance, about the expiration date of tax
declaration or to switch off lamps, where nudges appear as merely informative, though their
final end goes beyond providing information. But we can also recall the pictures of flowers and
plants or of persons who recycle waste painted on the walls of public areas and spaces, that are
manifestly devoted to stimulate nature-friendly attitudes.
Nudges guide behaviours not only by using language (implicitly or explicitly) but also by
changing the environment where we live. For instance, the average proximity of things with
respect to us or even their mere spatial location can be relevant in putting in place an action or
its opposite. As right-handed people are dominant, to put a device (such as a button to opt-out
a default rule) on the right rather than on the left side may have a great impact in its use and,
therefore, highly decrease the number of opt-out choices. This can be observed, for example,
at cash machines that have switched the position of the “no receipt” button for cash withdrawal
from the left to the right side of the screen (sometimes also highlighting this option as a more
ecological choice).
The examples show, furthermore, that nudges typically presuppose, from the moment they
are designed, a refined and in-depth knowledge of human behaviour (i.e. ordinary attitudes,
common intuitions, skills, capabilities, and patterns of behaviour), including, but not limited
to, the common biases, fallacies and, in general, all deficiencies and constraints that exist in
the real processes of deliberation. Therefore, in spite of a commonplace and some definitions,
nudging is not always “motivated” or “made possible because of cognitive boundaries, biases,
routines, and habits in individual and social decision-making posing barriers for people to
perform rationally in their own self-declared interests”, neither it (necessarily) works “by
making use of those boundaries, biases, routines, and habits as integral parts”; 45 rather,
boundaries, biases, routines, and habits are just usual preconditions of nudges, which are not
always linked or limited to these elements. Nudges are often designed and scoped to trigger
and stimulate a complex process of reasoning.
Finally, as the above examples show, nudges are distinct from incentives in the sense that,
while the former convey a desired conduct indirectly, the latter are explicit interventions that
motivate or encourages one to do something straightforward: that is, they are typically attached

44
See e.g. Cserne (2016).
45
Hansen (2016: 171–174).
S. Zorzetto and F. Ferraro 101

to the desired conduct, often in the form of reward. For example, a discount on the cost of
public transport is clearly an incentive aimed at increasing its use; but this same end can be
pursued by nudging too, e.g., by way of implementing campaigns that give publicity to the
benefits deriving from using public transports (with respect to reduction of pollution, decrease
of risks of accidents, better exploitation of times by travellers, etc.). However, the distinction
between nudges and incentives is not clear-cut in all concrete circumstances, where sometimes,
depending also on the relevant point of view (that of the “designer” and the addressed agents,
or external observers), some incentives which are left implicit in the context of decision may
be qualified as nudges, or may be a part of a nudge. Anyhow, nudging may change and
normally changes our perceptions of incentives as a matter of fact: for this reason, nudges and
incentives can be combined, and often are applied jointly to reinforce each other. The above
mentioned example on transport is trivial but significant on the purpose.

5.4 Nudging: Context Relevance and Open Purposes

The above examples are just a small sample of the large variety of nudges which everyone
experience into their everyday life. As we will argue, they show that the received view on
nudging, rather than trying to make sense of the actual phenomena usually labelled as such,
takes as its starting point a normative commitment to a certain ethical and political stance. The
consequences of this approach are that the definitory elements of “nudge” are chosen with the
purpose of making them compatible with that normative stance. More specifically, the concept
of nudging proposed by Thaler and Sunstein seems a corollary of their defence of libertarian
paternalism.
An example of this approach is offered by these authors’ thesis regarding how nudges act
on the choices available to the subjects. According to them, nudging does not restrict the
original set of choices of the addressees, 46 but merely modifies the conditions in which choices
are made within the original subset. Thaler and Sunstein seem to value this as a condition for
considering nudging as an expression of libertarian paternalism, with special regard to the
libertarian element. In their view, by not restricting the available choices, but rather preserving
or even expanding them, nudges respect individual autonomy. However, this is no distinctive
element of nudges. From one point of view, the empirically available set of choices is left
unaltered by any kind of intervention which does not physically prevent or constrain a specific
choice. A norm of criminal law attaching a punishment to the consumption of chocolate, for
instance, will not by itself exclude chocolate consumption as an available choice, since
someone could still choose to eat chocolate and incur the punishment. Clearly, the factual
consequences of the law could also include the practical impossibility for many to choose to
eat chocolate. But the same also applies to nudging: nudges do not make any choices
theoretically impossible, but they surely alter our perception of the available choices and make
some of them implausible in practice, since they are obviously not neutral.
From another point of view, every kind of intervention to influence the people’s conduct
(regardless of content and nature) actually changes their set of choices. By altering the context
in which choices are made, we are always also acting both on the conceptual description of any

46
Thaler and Sunstein do not say much on the possibility for nudges to actually modify the set of choices
by enlarging it. It should be noticed that the adding of new options could be a way of obtaining “decoy
effects” and to exploit “asymmetric dominance”, which are clearly forms of nudging. See Hansen (2016:
12–14).
5 Legislation and Nudging 102

given choice and on the agent’s deliberative process. The abovementioned norm of criminal
law attaching a punishment to the consumption of chocolate obviously erases the choice of
eating chocolate without incurring a punishment. However, also a nudge consisting in placing
chocolate on sale on top shelves at the supermarket actually bars a certain choice, namely that
of purchasing chocolate without having to ask for help (something which could actually change
things, for instance, for some obese people ashamed of their aspect).
Thaler and Sunstein hold that, to qualify as such, nudges must be “easy and cheap to avoid”.
This could offer a reply to our argument that both nudges and peremptory rules do affect our
set of choices and make some of them more or less plausible. However, the “easy and cheap”
condition does not provide a proper criterion to identify nudges. Firstly—and most obviously—
both the terms “easy” and “cheap” are indeterminate in many different senses. Secondly, they
refer to dispositional properties—we have more or less cheap and easy things—but we are not
told where the limit lies, i.e. when interventions start to be too hard or too expensive to avoid
and, therefore, cannot qualify as nudges. Thirdly, the “easy and cheap” condition is always
relative to the agent: for some, asking for help to get the chocolate from the top shelf will be
no big issue because they value chocolate enough to overcome this inconvenience, while others
will renounce. More generally, easiness and cheapness will depend on the whole context of the
particular choice. Therefore, both the alleged neutrality with respect to the set of choices (that
is, the leaving it substantially unaltered) and the “easy and cheap” condition do not provide
useful definitory elements for identifying nudges.
Many conceptions seem to include in their definition of “nudging” its being subservient to
specific political values. However, on a closer look these views seem misleading as nudging is
essentially a tool, i.e. a means fit to achieve a wide range of purposes. As many cases show,
nudges are simply instruments based on the success of behavioural sciences that can be used
to influence people in acting and making decisions. The idea that nudges are necessarily aimed
at making decisions more rational or at maximizing preference satisfaction is fallacious. The
debate existing on this issue among scholars misses the real target, which is not whether
nudging is or is not a way to promote economic rationality (whatever that means) or libertarian
policies rather than paternalistic ones. It is unquestionable that nudges may serve different
purposes like saving public goods (i.e. non-excludable and non-rivalrous goods), reducing
externalities, protecting the public or promoting welfare or merit goods: that is, they are part
of policies aimed at promoting the public interest. 47 Think, for instance, of opt-out organ donor
regimes or environment-protecting choice architecture, such as energy-saving nudges: they
have nothing to do with bringing their addressees closer to the ideal model of a rational
economic actor. On the one side, the agents’ preferences which nudges supposedly help to
satisfy are not necessarily characterized as in the homo oeconomicus model. Econs are
conceived as egoistic and hold self-centred preferences, with no concern at all for human
relationships and non-egoistic values. On the contrary, Humans often hold values—and
corresponding preferences—which are unrelated to their own welfare or economic efficiency:
as argued by Amartya Sen, they sometimes act according to purely moral concerns, while
acknowledging that it would be better for them to act differently (that is, in a more selfish
way). 48 This feature of Humans is obviously not a mark of irrationality and many nudges
actually help us to maximize this kind of non-egoistic preferences. On the other side, whether
the nudged individuals actually have moral concerns or not, it is pretty clear that many
behavioural interventions in choice architecture are not aimed at maximizing the preference

47
van Aaken (2015).
48
Sen (1982: 84); also Smith and McPherson (2009: 327).
S. Zorzetto and F. Ferraro 103

satisfaction of the nudged, but rather at making them choose in a way that serves some public
end. Such policies are indeed quite indifferent to the preferences of the addressees.
Once we assume that there are no conceptual links between nudging and some precise
purpose, also the well-known ties between nudging and a specific political ideology, that of
“libertarian paternalism”—established by Thaler and Sunstein, and followed by many others—
are severed. 49 According to them, “(…) a policy is ‘paternalistic’ if it tries to influence choices
in a way that will make choosers better off, as judged by themselves” (Thaler and Sunstein
2009: 5). To be true, for the supporters of the distinction between “hard” and “soft”
paternalism, this would be by itself a reference to a soft form of paternalism, because hard
paternalism is usually associated with a disregard for actual preferences and fully voluntary
choices. 50 Another way to put this is by referring to “means paternalism” and “ends
paternalism”: means paternalists only consider it morally correct to intervene on the means that
people choose to pursue their own objectives, while ends paternalists deem it right to act on
those very objectives (thereby imposing the ends that they consider as morally valuable). 51
Moreover, by endorsing a libertarian form of paternalism, we commit ourselves not to restrict
the people’s freedom of choice, but rather to preserve or even increase it. Therefore, according
to Thaler and Sunstein nudges should be seen as an expression of this kind of paternalism, the
acceptability of which is still debated (mostly within the normative framework of non-
perfectionist liberalism). 52 Negative judgements on libertarian paternalism have reflected on
nudging as a policy tool.
However, nudging is not necessarily paternalistic, in that it can serve purposes and values
which have nothing to do with the addressee’s own preferences, as we have seen. Moreover,
nudging can promote ends different from preference satisfaction and even welfare, whether
individual or collective. Informed consent policies in healthcare, for instance, enhance
substantive freedom and the possibility of autonomous choice, rather than merely contribute to
the welfare of the patient; other nudges promote values like equality. 53 All these would hardly
qualify as paternalistic measures (whether libertarian or not). Moreover, even in some
problematic cases of nudging for genuinely paternalistic and libertarian purposes, it is often
doubtful that nudges succeed in treating people according to their own preferences. 54
Therefore, not only are nudges often used for non-paternalistic purposes, but even when they
are genuinely intended to work for the agent’s own good and/or preferences, they are often
neither the most effective nor the least intrusive way for achieving paternalistic ends.
A safe element to include in a definition of “nudging” is that it implies “the deliberate
intention of an agent” (Moles 2015: 648), namely, the so-called “choice architect”. This means
that nudges are not brute facts and cannot be casual phenomena. Shifting from the level of
common behaviours to the level of legal authorities, policymakers can promote, but also
impose the use of nudging to officials. On these bases, both private organizations or companies

49
Thaler and Sunstein (2009: 5–6). See also Sunstein (2014a); Kapeliushnikov (2015); Hansen (2015:
155-174).
50
See e.g. Feinberg (1984: 12).
51
See Sunstein (2013: 190 ff.). However, Thaler’s and Sunstein’s qualification of nudges as paternalistic
presupposes a very weak definition of “paternalism”, which expands the most common definitions to
include acts which are not coercion and only pursue the addressee’s welfare. In the case of nudges,
“paternalism” could be simply substituted with “benevolence”.
52
See e.g. Quong (2011).
53 Smith and McPherson (2009).
54
Glod (2015).
5 Legislation and Nudging 104

and public institutions can nudge people carrying into effect behavioural studies as well as
empirical tests. Therefore, nudging looks as a form of social planning that does not depend on,
and is not limited to, a specific legal system or tradition or a certain model of legal institutions.
We can also add that nudges, as intentional verified interventions, tend to be based on a
predictable behavioural effect. 55 However, predictability does not imply that nudges
necessarily act by exploiting the foreseeable outcomes of shallow cognitive processes,
deliberative biases, short-term temptations, and so on. As we have seen, nudges are meant to
act in a predictable way, but not necessarily by means of bypassing careful deliberation.

5.5 Conclusion. A Proposal of Definition

According to all the above considerations, the definition of “nudging” that we propose is the
following:
Nudging is: 1) someone’s (i.e. the nudger’s) deliberate intervention to modify the concrete
context in which someone else (i.e. the nudged) is deciding how to act; 2) the nudger intervenes
on the presupposition that the process of decision of the nudged would otherwise be
unsatisfactory, at least from the point of view of the nudger, for whatever reason; 3) by
modifying the specific decision context, the intervention aims at influencing the conduct of the
nudged in the direction desired by the nudger; 4) the desired conduct is not the object of a direct
and explicit requirement, but rather pursued indirectly and, in particular, by avoiding whatever
authoritative, mandatory, or otherwise binding directives; 5) by design, the intervention is
based on behavioural, psychological, empirical surveys that shall be tested also to check their
outcomes and efficacy.
In condition 2, the idea that the decision process would otherwise be unsatisfactory leaves
it open whether it would be flawed because of shallow cognitive processes, failure to satisfy
the preferences of the nudged, undesirable outcomes with respect to collective ends, or
whatever other reason. The condition only states that the decision process would be
unsatisfactory (at least) from the nudger’s point of view. The ethical and political normative
standpoint, and more generally the ends of nudging, are left open too.
Condition 3 allows to include both nudges aimed at simply mimicking the results of
satisfactory deliberation and nudges which, on the contrary, act by improving the decision
process itself.
Condition 4 provides the differential feature of nudges with respect to other forms of
intervention aimed at influencing conduct: we can distinguish nudges, for instance, from
norms, which explicitly declare the required conduct or, conversely, mark out the undesired
conduct as the one which calls for the sanction.
Condition 5 provides a distinctive specific feature that makes nudging a device that requires
the application of scientific method.
Our definition of “nudging” aims to be explicative and it is clearly minimal, in that not only
does it rule out any specific end as a necessary condition for a behavioural intervention to
qualify as a nudge, but it also allows some nudges to work without necessarily exploiting
cognitive and deliberative shortcomings. In this sense, it is different from other minimal
definitions, which incorporate the idea that nudges necessarily act by making use of shallow

55
Tor (2016).
S. Zorzetto and F. Ferraro 105

cognitive processes and the like. 56 However, our minimal definition also presupposes that some
common features of all nudges can be pointed out. Although, as it has been observed, nudge is
a semantically multifarious concept, we do not think it necessary to identify more than one
different concepts of nudging. 57 Of course, different kinds of nudging can be individuated
within the wide framework of our definition and nudges can be categorized according to their
ends, to their ways of functioning, and so on.

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 Part II

Legislation in a Culture of Justification

Chapter 6
Legislation as Balancing

Jan-R. Sieckmann *

Abstract 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. In particular, it is open because the legislature may, in general, pursue its
political objectives without further legitimation and is not necessarily bound to consider only legal
principles. It is “pure” as the issue of control and its effects on the structure of balancing are 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.
Keywords Balancing • Legislative rationality • Optimisation • Rights • Utilitarianism

1 Introduction

Balancing lies at the centre of rational decision-making, including rational lawmaking. 1 The
requirement that lawmaking must be rationally justified does not, however, belong to
traditional constitutional law. It has been developed in the adjudication of fundamental rights,
applying the principle of proportionality to any interference with fundamental rights. This
development can be seen as a more general shift from a “culture of authority” to a “culture of
justification” (Cohen-Eliya and Porat 2010: 466, 474). 2 It puts the principle of proportionality
and the method of balancing at the centre of constitutional law, to be applied not only by judges
but also, and in first instance, by the legislator.
The balancing of fundamental rights has been intensively analysed as a form of judicial
reasoning. 3 Legislative balancing, however, has features that are distinct from judicial
balancing (see Sieckmann 2016: 285–303). In particular, it is open because the legislature may,

J.-R. Sieckmann ()

Institut für Rechtsphilosphie, Friedrich-Alexander-Universität Erlangen Nürnberg
Juridicum, Schillerstr. 1, D–91054 Erlangen (Germany)
e-mail: [email protected]
*
1
Alas, it is only one aspect of legislative rationality. For more comprehensive accounts of legislative
rationality see Atienza (2018) in this volume; Oliver Lalana (2013); Wintgens (2012).
2
As to the “culture of justification” see also Dyzenhaus (1998: 11 ff.; 2015: 425 ff.).
3
See Alexy (2002); Clérico (2001); Petersen (2015); Sieckmann (2018); or Marcilla (2018, in this book).
6 Legislation as Balancing 112

in general, pursue its political objectives without further legitimation and is not necessarily
bound to consider only legal principles. It is “pure” as the issue of control and its effects on the
structure of balancing are not present in legislative balancing. And it is complex for it is not
restricted to claims advanced in a judicial procedure but may or must take into account any
relevant aspect.
The aim of this contribution is to analyse the balancing of normative arguments with regard
to complex conflicts of interests and to 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 legislative balancing. Of special interest will
be the role of rights in legislative balancing. First, I will outline the model of balancing
underlying the proposed analysis.

6.2 The Model of Balancing

The central problem of balancing is how to justify a priority among normative arguments in
conflict (see Sieckmann 2012: 45). This depends on the criteria that hold for determining such
a relation. These criteria follow from a model of optimisation. 4 According to this model, the
determination of the priority among normative arguments must render an optimal solution (see
also Sieckmann 2012, 90). Thus, the basic rule of balancing can be stated as follows:

(R1) One should choose, as the result of a balancing problem, an optimal solution.

Optimality, again, is defined by a criterion of equilibrium. A solution is optimal if it results

in a state of affairs where the conflicting arguments are considered to be of equal weight, that
is, where one is indifferent between the respective gains and losses in the fulfilment of the
conflicting requirements. Accordingly, there is no reason to change the situation and look for
a better solution.
The following graphic illustrates the structure of a balancing problem. 5

4
The idea of optimisation is ambiguous and contested. For a critique see for example Slote (1989).
Nevertheless, it seems at least possible to integrate critiques, such as the suggestion that one should
choose a second best solution, into a more complex model of optimisation. In addition, it is not clear
whether the critiques against optimisation apply to the model of autonomous balancing proposed here.
5
See also Hurley (1989: 70); Barry (1990: xxxix); Steiner (1994: 164); Jansen (1997: 29 ff.; 1998: 112
f.); Rivers (2006; 2007); and Sieckmann (2012: 90 ff.).
Jan-R. Sieckmann 113

Fig 6.1. Structure of a balancing problem

When a conflict between two principles P1 and P2 occurs, the possible degree of fulfilment
of one principle is greater the less the other principle is fulfilled.

For example, the more speech is permitted the less the personal honour is protected. The
factually possible, feasible solutions can be represented by a curve that connects the points
combining a certain fulfilment of P1 with the highest possible fulfilment of P2 that is
compatible with the respective fulfilment of P1 (the Pareto-optimality frontier). Given a
certain degree of protection of honour, the highest possible fulfilment of the principle of free
speech is that any speech is permitted which does not interfere with this protection.

In addition, combinations of a certain fulfilment of P1 and of P2 must be evaluated.

Obviously, a complete fulfilment of P1 and P2 would be best, complete non-fulfilment of both
would be worst. Combinations between these extremes can be ordered in classes of
combinations with respect to which the person judging is indifferent, that is, which ones he
evaluates as equally good. This evaluation results from weighing-up a certain loss in fulfilment
of P1 with a certain gain in fulfilment of P2, e.g. a certain loss of protection of personal honour
and a certain gain in free speech. The points representing combinations evaluated as equally
good can be connected by indifference curves. The higher an indifference curve in this bundle
is placed, the better the combinations represented by this curve are.
There will be a bundle of indifference curves that do not touch or intersect but lie on top of
each other. Some of these indifference curves will at some point or a set of points intersect with
or touch the curve of factually possible combinations. The indifference curve that does not
intersect but only touches the curve of possible combinations is the best available indifference
curve. The points situated on both curves are the optimal solutions of the balancing problem.
The preference among the conflicting principles is determined by the optimal solutions.
The elements of this model of optimisation are, an adaption of the criterion of Pareto-
optimality, the idea of indifference curves, and the definition of optimality based on both of
6 Legislation as Balancing 114

the former elements.

6.2.1 The Criterion of Pareto-Optimality

The criterion of Pareto-optimality defines as optimal those states of affairs that one cannot
change without deteriorating the position of at least one of the individuals involved (see Barry
1990: 49–50). In order to apply this criterion to normative arguments, instead of considering
positions of persons, one has to consider the fulfilment of the claims or principles included in
normative arguments. 6 Accordingly, solutions are Pareto-optimal if and only if they cannot be
changed without diminishing the degree of fulfilment of at least one principle involved (see
also Schlink 1976: 171 ff.; Alexy 2002: 68). Any gain on part of one of the principles involved
must result in a loss in the fulfilment of a conflicting principle.
In the graphic, Pareto-optimal solutions are represented by the concave curve, bended to the
right. The drawing of this curve is arbitrary. It may be drawn as a straight line as well. Also it
need not be the case that Pareto-optimal solutions form a continuous line. It may be that in fact
only some discrete solutions can be realized. If, in an extreme example, only the solutions lying
on the axes are possible, the balancing would amount to an all-or-nothing decision. Still it
would be a balancing of normative arguments.

6.2.2 Indifference Curves

The points representing solutions evaluated as equally good can be connected by an

“indifference curve”. These solutions are hypothetical, not necessarily actually possible
combinations of degrees of fulfilment of the conflicting principles. The indifference curves will
run from northwest to southeast, that is, each indifference curve will be falling. Since the agent
doing the evaluation will not prefer anyone of these points to another point of this curve, she
will be indifferent to each of the solutions represented by one curve. However, she would prefer
solutions above this curve to those on the respective curve.
In the graphic, the indifference curves are represented by convex lines, bended to the left,
away from the origin of the scheme. As with the Pareto-optimality curve, the drawing is
arbitrary.

6.2.3 Optimality

The definition of an optimal solution to a conflict of arguments results as follows.

DEF(OPT): Optimal solutions represent those points situated as well on the Pareto-
optimality frontier as on the highest accessible indifference curve, where the
indifference curve touches the Pareto-optimality curve but does not intersect with
it.

The points situated on both of these curves are the optimal solutions of the balancing

6
This goes beyond the original meaning of this criterion and also of its use in economics and practical
philosophy. See, e.g., Sen (1970: 152 ff.); Nozick (1981: 487 ff.). However, the criterion explicates a
central feature of rational decision-making when choices between incompatible options must be made.
There is no need to restrict it to the positions, utilities or preferences of individuals.
Jan-R. Sieckmann 115

problem. Indifference curves intersecting with the Pareto-optimality curve cannot be optimal
because there is a superior indifference curve that does not intersect but only touches the curve
of possible combinations. The points on the touching indifference curve are evaluated as better
than those on a lower indifference curve. On the other hand, points on indifference curves
above the Pareto-optimality curve are in fact not accessible. They cannot be solutions of the
balancing problem. Thus, the optimal solutions must be those situated on both curves, that is,
the Pareto-optimality frontier and the highest accessible indifference curve.

6.2.4 Rules of Balancing

The balancing outlined above applies two criteria, which are, the degree of fulfilment or non-
fulfilment of the principles in question and, the weight or importance of these principles in the
abstract, disregarding the degree of fulfilment in the concrete case. The result of the balancing
thus depends on four factors, which one can represent as a quadruple

<wr(P1), df(P1), wr(P2), df(P2)>.

“wr” denotes the abstract relative weight of the competing principles P1 and P2. The
abstract weight depends on the relative weight of the respective principles, but is assigned to
each principle individually. Thus, it can be called a “non-relational relative weight”.
“df” denotes the respective degrees of fulfilment of the competing principles P1 and P2
regarding the measure under consideration. It expresses what is gained or lossed for the
respective principle by performing or not performing this measure.
The concrete weight of the respective principle under the circumstances of a particular case
“wc(Pi)” is a function of its abstract weight and its degree of fulfilment. This function may be
defined, in a first approach, as the product of both factors:

wc(Pi) = wr(Pi) x df(Pi).

This product may also be called the value of fulfilment “vf” of the respective solution
regarding the respective principle Pi.
One can also define a value of fulfilment of a solution to the balancing problem (the choice
of a particular norm N instead of its contrary, for example, permission of a particular expression
instead of its prohibition) referring to the quadruple <wr(P1), df(P1), wr(P2), df(P2)>. For
example, one might define this value of fulfilment as the sum of the values of fulfilment of the
respective principles:

vf(N) = (wr(P1) x df(P1)) + (wr(P2) x df(P2)).

Based on these definitions, one can state certain rules of balancing:

(R2) One should give priority to the principle that has the greater concrete weight
in the circumstances of the particular case.
(R3) One should give priority to the solution that achieves the greater value of
fulfilment in the circumstances of the particular case.
(R4) One should choose a solution to a balancing problem that achieves the
greatest value of fulfilment.
6 Legislation as Balancing 116

These rules interpret the requirement of optimization stated above. One should note,
however, that the issue only is to define what is an optimal solution, not to determine a solution
as the objectively correct one. The model of optimisation shows which assumptions one must
introduce in order to carry out a balancing of conflicting arguments. The assumptions about
abstract weights, degrees of interference or fulfilment, and concrete weights or values of
fulfilment are, in first place, subjective judgments. The issue of their objective correctness, in
the sense that each reasonable agent must accept them as correct, remains open.7

6.3 Complex Balancing – Interests, Arguments, and Principles

Balancing can refer to various types of objects, such as interests, goals, arguments, values, or
principles. In judicial balancing, it is common to refer to values or principles. As a
consequence, not everything that people want or strive for is relevant for legal discourse, not
even any legitimate moral claim. By contrast, in general practical discourse, legitimate interests
of autonomous agents constitute normative arguments, which other agents have to take into
account in their reasoning (Sieckmann 2012: 14–15). Each interest that autonomous agents
advance and that is not directed against the autonomy of other agents, is relevant for practical
discourse. By contrast, in order to be relevant for legal discourse, such arguments must be
qualified as legally valid or at least legally relevant. From the perspective of law as a normative
system, this implies that legal organs are under an obligation to consider these arguments.
In this respect, legislative balancing is distinct from judicial balancing. The legislator can
take into account any type of argument, not only legally valid arguments. In addition, as far as
the legislator can change law, law is not binding on him. 8 However, the ordinary legislator is
bound by the constitution or other superior law. But beyond these binding legal norms, the
legislator is free to consider any argument. In addition, a rational legislator will take into
account any relevant argument put forward in a rational discourse and will not confine his
reasoning to legally valid arguments.
Since normative arguments are constituted by legitimate interests, legislative balancing is
interest-based. The issue then is what is the structure of interest-based balancing. Is it distinct
from the judicial balancing of values or principles? And how does interest-based balancing
relate to the balancing of legal principles?
The model of optimisation is neutral against diverse objects of balancing. It takes the
perspective of an agent doing the balancing, determining the relative weight of the demands in
conflict. For both, interest-based balancing as well as the balancing of principles, the issue is
whether there are criteria of rationality, which give autonomous balancing a certain structure.
A standard approach to rational balancing is that of utilitarianism.

7
Dworkin (1986: 87 ff. and 1996: 87 ff.) suggests that the quest for objectivity does not make sense.
However, his position ignores a crucial philosophical problem and is convincingly refuted, for example,
by Rodriguez-Blanco (2004).
8
Binding in a strict sense. Still the legislator might be under an obligation to consider arguments that
are in principle valid. See Sieckmann (2018).
Jan-R. Sieckmann 117

6.3.1 Utilitarian Balancing

Interest-based balancing can take a form of utilitarianism (see, for example, Sen and Williams
1982). A standard approach suggests that what is morally right or obligatory is determined by
means of a criterion that refers to the increase of utility for the relevant agents (see Trapp 1988).
Different versions exist, for example, referring to total utility or to average utility (Hahn 1982:
188). In any case, one can state as a basic norm of utilitarian reasoning:

(U) One should choose an action that achieves a maximal increase of utility for
the affected agents. 9

6.3.1.1 The Increase of Utility

The increase of utility u* achieved by a particular action, that is, a decision D, for an agent ai
can be defined as the degree of fulfilment of a particular interest I that is achieved by this
decision:

u*(ai, D) = dff(I(ai), D) .

Any classical account, however, confronts the objection that a just criterion cannot refer
exclusively to the increase of utility. As Rainer Trapp points out, what must be relevant are
also the initial levels of utility of the affected agents, the distribution of the resulting utility
levels, and the merits of the relevant interests (Trapp 1988: 14). I will disregard problems of
distribution. What is important here is the evaluation of the relevant interests according to their
merits, and accordingly of the utility increase.
The evaluation can be done by means of principles or values. An interest is relevant if it is
backed by some valid principle, demanding that this interest should be realised. Its weight or
importance depends on that of the underlying principle. The more important the principle, the
more important the interest. Accordingly, the utility of an action regarding a particular agent
does not only depend on the degree of fulfilment that it yields for a particular interest, but on
the importance or weight (w) of this interest. Degree of fulfilment of an interest and the weight
of the supporting principle determine the weight of this interest in the circumstances of the
particular case, or its concrete weight. The result of the balancing then depends on the
aggregation of the concrete weights of these interests.

6.3.1.2 The Aggregation of Interests

The aggregation of interests according to their concrete weight is a complex issue that is best
treated using mathematical tools. Indeed, the analysis of complex problems of balancing by
means of natural language, without using mathematical devices, would be extremely clumsy
and incomprehensible, if possible at all (see also Hofmann 2007: 5). 10
One can, for example, define the utility increase for a particular agent as follows:

9
Cf. for a similar view Trapp (1988: 67).
10
This also holds with regard to the non-numerical approach of Sartor (2013).
6 Legislation as Balancing 118

u*(ai, D) = w(I) x dff(I(ai), D).

The overall utility U then results from the sum of all relevant increases in utility:

n
U(D) = Σ u*(ai,D).
i=1

Since, however, utilitarian reasoning is neutral against the identity of particular agents, the
overall utility can be measured directly with respect to the affected interests (Ii), without
reference to particular agents. What matters is the weight of these interests in the circumstances
of the particular case, or their concrete weight. This can be defined as:

wc(ii, D) = w(ii) x dff(Ii, D).

Thus, we get as the criterion of the overall utility of a decision D:

n
U(D) = Σ wc(Ii,D).
i=1

This criterion must be applied to the available options for D. The option Di that yields the
greatest utility ought to be chosen.

6.3.2 Some Difficulties

The application of this criterion presents, however, various difficulties. A first problem
concerns the use of arithmetic functions. This requires not only to assign numbers to the
relevant factors, but implies also a definite relation among the possible values of these factors.
Although we may well be able to evaluate degrees of fulfilment or abstract weights as high,
medium, or low, or by some other gross scale, the relation between these values remains
indefinite. We do not know whether the difference between high and medium is equal to that
between medium and low, and we do not know whether the difference between high and
medium in one case is the same as in another case. However, as long as we are not able to make
such assessments, the use of arithmetic function implies unjustified assumptions. 11 As a
consequence, it would be a mistake to present the results of this operation as objective
knowledge.
Fortunately, the legislator need not present his balancing as a form of objective knowledge
but can take a political decision. This opens the field for the application of mathematical tools.
By using some arithmetic function, legislative balancing stipulates certain numerical relations
between possible or actual evaluations regarding the factors of the balancing. This does not
claim objective validity but guarantees a certain level of coherence and allows one to compare
balancing judgments in different cases. It requires, however, to adjust the balancing whenever
incoherencies occur. This adjustment also includes the possibility to modify or change the
mathematical function that is used for the balancing.
The choice of an adequate mathematical function is another problem which numeric

11
Sartor (2013) suggests to use non-numerical functions. This, however, will not suffice to cope with
complex problems of balancing.
Jan-R. Sieckmann 119

balancing confronts. In particular, natural-language arguments supporting the same result often
are not independent from each other. Therefore, they cannot simply be aggregated (see
Sieckmann 2010, 110; Jansen 1998, 120). As a consequence, it is not clear which mathematical
function is adequate. Still, although the application of mathematical functions appears to be
very demanding and also confronts unresolved problems, such tools seem to be necessary in
order to develop a theory of rational legislative balancing.
In any case, legislative balancing confronts other serious problems regarding the
determination of the factors of the balancing.
- Which are the relevant interests? The relevant interests still are interests of particular
agents, so one should expect that these agents should determine what their interests are. Then,
however, the question arises of how a legislator or some other decision-making organ can come
to know these interests, and how the interests of different agents can be compared with each
other.
- How should one determine the degree of interference of an interest? Again, one could
leave the assessment to the respective agent. But then the questions arise of how one can get to
know these assessments, and how they can be compared with each other.
- How should one determine the weight of the respective interests? As before, one might
leave the determination to the respective agent, with the subsequent questions of how one can
know these determinations and, whether they are comparable with each other.
It seems that two strategies are available for coping with these problems:
(1) a weighted voting procedure, in which determinations are made by the affected agents
themselves, observing certain standards of rational argument, and where the judgments of each
agent count as equal, thus assuming that these judgments are completely comparable.
(2) an “objective” judgment of the legislator, which replaces the subjective assessments of
the involved agents and which tries to approximate the determinations the agents themselves
would make and to reconstruct the available determinations of the affected agents in order to
make them as rational and as comparable as possible.
Since a weighted voting procedure is not feasible, legislative balancing shall be regarded
here as a reconstruction of the determinations of the affected agents.

6.3.3 An Example: The Prohibition to Smoke in Bars or Restaurants

As an example, I will discuss the case of the prohibition to smoke in bars and restaurants. In
this case, the legislator has to determine who are the affected agents, what are their interests,
to which degree these interests are affected by the available decisions, how important they are
in the abstract, and what is their concrete weight. Based on these assumptions, the legislature
has to assess the overall utility of the possible regulations that it could enact. Regarding the
available decisions, one must consider not only the extremes: prohibition to smoke in bars or
restaurants, or no prohibition, but also some alternatives as, for example, a prohibition only in
restaurants, a prohibition where no separate room for non-smokers is available, an exception
for small bars, or a licensing system that guarantees an appropriate balance between smoking
and non-smoking bars or restaurants. I will start, however, with the discussion of the simple
alternative prohibition/no prohibition.

6.3.3.1 Prohibition/No prohibition, Evaluation Favourable to Non-Smokers, Counting

6 Legislation as Balancing 120

Agents

The affected people are smokers and non-smokers, the owners of bars or restaurants, and their
employees. But also other people might be affected because smokers who are banned from bars
or restaurants might smoke in other places. However, I will disregard this aspect.
The degree of affection or, reverse, fulfilment of these interests must, in first place, be
determined individually, regarding each particular agent. This will not be possible completely,
but it is the objective that one ought to approximate. However, in practice, only rough
assessments are possible. For reasons of simplicity, one can assume that the interests of
smokers are homogeneous, so that one can speak of the interest of smokers indiscriminately
instead of the interests of individual smokers. In the same sense, one can assume that there is
an interest of non-smokers, of bar owners, and of their employees.
One might assume that the interest of smokers to be free to smoke is affected to a moderate
degree because, on the one hand, bars or restaurants are a favourite place to smoke but, on the
other hand, they have other opportunities for smoking, and smoking is not necessary in order
to visit bars or restaurants.
The interest of non-smokers first must be defined more precisely. Since they are not forced
to visit bars or restaurants where smokers are, their health is not directly affected, but merely
their interest to visit bars and restaurants. This interest will be affected to a degree that depends
on the percentage of non-smoking bars or restaurants. Before regulation, this percentage
seemed to be low, so that the respective interest of non-smokers is affected to a relatively high
degree.
The interest of the owners of bars or restaurants is affected depending on the willingness of
smokers to visit bars and restaurants without smoking. If there is no other possibility left for
them, one can assume that the prohibition to smoke will have little effect on the habit of
smokers to visit bars or restaurants.
The interest of employees is primarily the protection of their health at their working-places.
This interest is affected the more difficult it is for an employee to find another job without such
health risk. With no regulation and a common habit to smoke in bars and restaurants, the
affection of their interest in health is considerable, reflecting the risk of passive smoking, but
not high, for their health is not in concrete danger.
The next issue is the weight or importance of these interests. One should confine the
evaluation to the relevant context, that is, to the set of interests at stake in the concrete case.
One might assume the following evaluation:
The interest of smokers is mere enjoyment and as such of little weight.
The interest of non-smokers is that of visting bars or restaurants, which, as part of social
communication, seems of some importance although not very important.
The interest of employees in health protection is important, that is, high.
The interest of the bar owners is more important than that of smokers, but not as important
as that of the employees, so it can be assessed as medium.
Finally, the weighted interests have to be aggregated. In a utilitarian balancing, this takes
into account the assessments of degrees of fulfilment and abstract weight, but also the number
of agents affected.
We might assign the following numbers: high = 3, medium = 2, low = 1. The number of
smokers might be 20 Mio, of non-smokers 50 Mio, of the employees in bars or restaurants
400.000, and of bars or restaurants 200.000. A utilitarian calculation might then be as follows:
Jan-R. Sieckmann 121

Affection Weight Number in Mio. Concrete Weight

Smokers 2 1 20 40
Non-Smokers 3 2 50 300
Employees 2 3 0.4 2.4
Owners 2 2 0.2 0.8

U(prohibition) = 300+2.4-40-0.8 = 241.6

U(no prohibition) = -241.6

The arguments in favour of the prohibition will accordingly have the concrete weight 302.4,
those against the prohibition 40.8. The increase of utility by means of the prohibition is,
accordingly, 261,6. There is a clear priority for the prohibition.
However, if this were so, one could not understand that the prohibition to smoke in bars and
restaurants is (or was) a matter of serious dispute. Therefore, one should ask whether the
suggested calculation is adequate.

6.3.3.2 Prohibition/No prohibition, Evaluation Favourable to Non-Smokers, Moderate

Impact of the Number of Agents

A matter of concern is the impact of the number of agents. If the differences in the evaluation
of individual interests are limited to a relatively small margin (between 0 and 3), the number
of agents is decisive. We should therefore consider another mode of calculation, which restricts
the impact of the number of agents. For example, we could apply the scale 1, 2, 3 also to the
factor of the number of agents: great number = 3, medium number = 2, low number = 1.
One can assume that the number of smokers and non-smokers is great (that is, assessed as
3), that of the employees medium (that is, 2), that of owners of bars or restaurants small (that
is, 1). Accordingly, we can make the following assessment of the relevant factors of balancing
and of the concrete weight of the relevant interests:

Smokers: 2x1x3 = 6
Non-smokers: 3x2x3 = 18
Employees: 2x3x2 = 12
Owners: 2x2x1 = 4

U(prohibition) = 18 +12 -6 -4 = 20
U(no prohibition) = -20

Still, we get a clear overweight in favour of the prohibition to smoke. This result is counter-
intuitive as long as we regard the justification of a prohibition to smoke in bars and restaurants
as a serious problem.

6.3.3.3 Prohibition/No prohibition, Evaluation Favourable to Smokers, Moderate

Impact of the Number of Agents

We might have several doubts regarding the above balancing. First, one might doubt the
assessments of the relevant factors. One might, for example, regard the weight of the interest
of non-smokers as low because they have sufficient space to live according to their own views
but cannot impose their life style on other people who freely meet at certain places. In addition,
6 Legislation as Balancing 122

non-smokers have the possibility to open non-smoking bars or restaurants. And one might
argue that employees are not forced to work in bars or restaurants where smoking is permitted,
so that their interest is of little weight, and, in addition, that the health risks of passive smoking
are overrated. On the other side, one might attach more weight to the interest to smoke as an
expression of individual liberty. So one could get at a table

Smokers: 2x2x3 = 12
Non-smokers: 3x1x3 = 9
Employees: 1x1x2 = 2
Owners: 2x2x1 = 4

U(prohibition) = 9 +2 -12 –4 = -5
U(no prohibition) = 5

One would thus get a result against the prohibition of smoking in bars and restaurants. This
shows that mathematical precision cannot remove the leeway in the assessments of the relevant
factors of the balancing. The result of the balancing remains a matter of personal judgment.

6.3.3.4 Alternatives to Prohibition/No prohibition, Evaluation Favourable to Non-

Smokers, Moderate Impact of the Number of Agents

Even if one accepts the evaluations more favourable to the prohibition to smoke, the balancing
presented up to this point is much too simple. Instead of a general prohibition to smoke, one
had to consider various alternatives. In particular, one could admit smoking in bars or
restaurants only with a special license. Such a licensing system would diminish the affection
of bar owners. Indeed, it would eliminate the affection of bar owners with a license. The
number of licenses can be determined in a way to assure sufficient space for non-smokers. The
affection of non-smokers and employees by the licences would then be low. Their advantage
is almost as great as with a general prohibition. Also the number of affected employees
diminishes. In addition, the weight of their interest in a more extensive prohibition would
diminish with the degree in which their interest is fulfilled. The affection of smokers diminishes
depending on the number of licenses. Since smokers can visit bars for smokers, their advantage
is even greater than the percentage of smoking bars. The figures then might be as follows,
assuming that 10 % of the bars receive a license:

Utilities Prohibition No Prohibition Licensing System

Smokers: -1x1x3 = -3 1x1x3 = 3 -0.5x1x3 = -1.5
Non-smokers: 3x2x3 = 18 -3x2x3 = -18 2.7x2x3 = 16.2
Employees: 2x3x2 = 12 -2x3x2 = -12 1.8x3x1.8 = 9.72
Owners: -2x2x1 = -4 2x2x1 = 4 -1.8x2x1 = -3.6

Prohibition with Licensing System compared with general prohibition:

Smokers: 0.5x1x3 = 1.5

Non-smokers: 2.7x2x3 = 16.2
Employees: 1.8x3x2 = 10.8
Owners: 1.8x2x1 = 3.6
Jan-R. Sieckmann 123

U(licensing system compared with no-prohibition) = 16.2+10.8-1.5-3.6 = 21.9

Since the utility increase resulting from a general prohibition was 20, it seems that the
licensing system is favourable.
Alas, all this depends on assessments of the factors of balancing that may well be disputed.
We cannot claim to state here objectively valid results, but numerical representation and
arithmetic functions merely serve to offer a coherent presentation of the assessments made in
a balancing.

6.4 Rights Balancing

Another issue are doubts regarding the adequacy of utilitarian balancing of rights. As long as
the number of the affected peoples counts, interests of low importance can supersede even very
important interests of individuals or minorities. This makes necessary to consider a different
form of balancing, that is, rights balancing.
It seems that, by contrast to utilitarian balancing, the balancing of rights does not consider
the number of agents affected. A clear case is the balancing of human life, as, for example, in
the trolley case (see Engisch 1930: 288; Kumm 2007: 255). If a decision has to be made as to
whose life is to be sacrificed, a utilitarian would suggest to save as great a number of lifes as
possible. By contrast, it is common to deny that the number of lifes matter. An argument for
this position can be found in the thesis of the separateness of people (Rawls 1971: 27 ff.), which
excludes to aggregate the interests of all individual on equal footing, without regard to the fact
that they belong to different agents.

6.4.1 Universalisability as the Criterion of Rights Balancing

Following Habermas, one can characterise fundamental rights as those rights that citizen must
mutually attribute to each other in order to regulate their legal relations in a legitimate manner
(Habermas 1994: 151). This means that the relevant criterion for the balancing of rights is the
reasonable consent of the people and, in particular, of the affected rights-holders.
The need to strive for consent makes that all individuals have equal standing. A majority
cannot dominate the individual agents. One cannot justify a priority of majority interests just
because these interests are supported by more agents. Public interest and each individual
interest recognised as a fundamental right are prima facie of equal abstract weight. This also
holds for fundamental individual interests in conflict. Thus, the common assumption that all
fundamental rights are equally important is corroborated as a prima facie statement, which may
need modification because of special circumstances.
The question then is which regulation of their fundamental interests reasonable agents can
accept. One can state as a general criterion that the regulation must be capable of finding
general consent, that is, it must be universalisable in this sense. 12 It must be possible that each
agent accepts this regulation as a general law. Regulations which only are accepted as long as
oneself is not affected are ruled out.
A suitable device for implementing this demand of universalisability is that of role-change
(see Alexy 1989: 203). Each individual must take up the perspective of any other affected agent

12
For different aspects of universalisability see Alexy (1989: 65, 116, 190, 203, and 222–23).
6 Legislation as Balancing 124

and ask himself whether he would accept – or could or would reasonably accept – this
regulation if he were in the position of the affected agent.
The criteria of universalisability and role-exchange do not, however, provide criteria that
could guide the judgment in substance. Here, the criteria of abstract weight, degree of affection,
and concrete weight appear to be useful. It seems that the rule to decide in favour of the
argument that has greater or greatest concrete weight regarding the circumstances of the case
is universalisable. It can be accepted from the diverse perspectives of each individual agent.
Thus, one might suggest that fundamental rights balancing conforms partly with utilitarian
balancing but excludes the factor of the number of the affected agents.
In our example we would get the following results:

Assessments favourable to non-smokers:

Smokers: 1x1 = -1
Non-smokers: 3x2 = 6
Employees: 2x3 = 6
Owners: 2x2 = -4

Thus, we get still an overweight in favour of the prohibition to smoke.

Assessments favourable to smokers:

Smokers: 2x2 = -4
Non-smokers: 3x1 = 3
Employees: 1x1 = 1
Owners: 2x2 = -4

Now, we get a priority against the prohibition of smoking in bars and restaurants.

Assessment favourable to non-smokers comparing a strict licensing system with a general

prohibition:
Smokers would get a relatively high benefit from admitting at least some smoking bars. The
weight of their interest is elevated because this interest is realised to a low degree in the case
of a general prohibition to smoke in bars. Non-smokers and employees would loose little
compared with a general prohibition to smoke, but only a small part of bar owners will profit.

Smokers: 2x2 = -4
Non-smokers: 0.3x2 = 0.6
Employees: 0.2x3 = 0.6
Owners: 1.8x2 = -3.6

We would then get a clear result in favour of a licensing system compared with the general
prohibition of smoking in bars and restaurants even accepting an evaluation favourable to the
interests of non-smokers and employees.

6.4.2 Rights as Prohibitions of Balancing

The balancing of rights as conditions of legitimacy of a legal system applies to legislative

balancing whenever fundamental rights are at stake. There is, however, an even stronger
Jan-R. Sieckmann 125

interpretation of fundamental rights, that of rights as a “firewall” which excludes balancing

(Habermas 1994: 315). According to this view, fundamental rights prohibit a balancing of the
protected interest. 13
This idea seems quite plausible in the case of at least some fundamental rights. The State
has no authority regarding the personal life of the citizens, even if their decisions are
objectively wrong, for example, in the case that someone takes drugs. The choice of a
professional career is up to the individual and not up to the state, even if a highly qualified
person who could save many people as a surgeon decides to tend sheeps in the mountains. And
it is not up to political authorities to take economic decisions in the market. If non-smokers
want non-smoking bars or restaurants, this should create a demand that leads to a greater
number of non-smoking bars or restaurants.
The State needs, accordingly, not only good reasons to restrict fundamental rights but in
first place a strong justification is necessary why the State should be permitted to interfere with
a certain fundamental right. This view goes beyond the interpretation of rights as conditions of
legitimacy of the legal order. It protects individual private spheres even in case where there are
sufficient reasons to restrict them. One might call rights that have this status as “individualistic”
rights. They are not only individual rights but presuppose a particular substantive view that
emphasizes personal autonomy.
One might suggest that individualistic rights do not present a special structure but are merely
rights that are regarded as very important. However, the balancing of a right that is regarded as
very important is different from an argument about the issue of whether one is allowed to enter
into a balancing of this right. Even if the result would be the same, the structure of the argument
is different. The prohibition of balancing means that legal organs do not have the competence
to subject this right to a balancing procedure. The respective right is, accordingly, immune
against balancing. 14
One must note, however, that fundamental rights in constitutional states are not absolute
rights. There is no substantive right that can be exempt from the possibility of balancing, since
the possibility of conflicts with other fundamental rights or other legitimate interests of equal
importance exists. Therefore, fundamental rights can be immune to balancing only in principle.

6.5 Conclusion

Complex legislative balancing can be analysed using mathematical tools. The choice of the
mathematical function is, however, part of the problem. The application of mathematical tools
can therefore assure coherence, but not objectively valid results. Since legislation does not
depend on objective validity this objection does not apply against using mathematical tools in
analysing legislative balancing.
One must, however, distinguish different types of problems and, accordingly, modes of
balancing. Utilitarian balancing may be suitable where fundamental rights are not at stake. Still
a problem remains regarding the impact of the number of affected agents. Also the problem of
conceptual interdependencies presents a problem for aggregating utilities.

13
A similar idea is Dworkin’s thesis of rights as trumps, see Dworkin (1984: 153). However, this thesis
proposes the priority of rights against policies, it does not exclude balancing.
14
For the notions of competence (power), subjection, and immunity and their relations see Hohfeld
(1923: 36, 50 ff.); Alexy (2002: 155–156).
6 Legislation as Balancing 126

Where fundamental rights are at stake, rights balancing is required, which regards the
recognition of rights as conditions of legitimacy of a legal order. Since legitimacy depends on
consent of the affected agents and the judgements of each of these agents must be respected,
rights balancing does not consider the number of agents but only evaluates the respective
interests according to the demands of universalisability and role-exchange. The criteria of
abstract weight, degrees of affection or fulfilment, and concrete weight remain useful in rights
balancing.
An even stronger notion of fundamental rights regards them as prohibitions to balance the
protected interest, that is, as rights that are in principle immune against balancing. However,
this cannot hold absolutely. But the balancing takes a certain structure, which first requires a
sufficient justification for subjecting a right to a balancing and then proceeds to the balancing
in substance.
Legislative balancing must observe the different types of balancing and their respective
domains of application.

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Rawls, J. 1971. A Theory of Justice. Oxford: Oxford University Press.
Rivers, J. 2007. Proportionality, Discretion and the Second Law of Balancing. In Law, Rights and
Discourse. The Legal Philosophy of Robert Alexy, ed. G. Pavlakos, 189–206. Oxford and Portland:
Hart.
Rivers, J. 2006. Proportionality and Variable Intensity of Review. Cambridge Law Journal 65: 174–207.
Rodriguez Blanco, V. 2004. Meta-Ethics, Moral Objectivity and Law. Paderborn: mentis.
Sartor, G. 2013. The Logic of Proportionality: Reasoning with Non-numerical Magnitudes. German Law
Journal 14: 1419–1457.
Schlink, B. 1976. Abwägung im Verfassungsrecht. Berlin: Duncker & Humblot.
Sen, A. 1970. The Impossibility of a Paretian Liberal. Journal of Political Economy 78: 152–157.
Sen, A. and B. Williams. 1982. Introduction. In Utilitarianism and beyond, eds. A. Sen and B. Williams,
1–21. Cambridge et al.: Cambridge University Press.
Sieckmann, J-R. 2010. Balancing, Optimisation, and Alexy’s “Weight Formula”. In Legal Reasoning. The
Methods of Balancing, ARSP-Beiheft 124, ed. J. Sieckmann, 101–118. Stuttgart: F. Steiner.
Sieckmann, J-R. 2012. The Logic of Autonomy. Oxford and Portland: Hart Publishing.
Sieckmann, J-R. 2016. Rational Lawmaking, Proportionality, and Balancing. In Rational Lawmaking
under Review. Legisprudence according to the German Federal Constitutional Court, eds. K.
Messerschmidt and A.D. Oliver-Lalana, 349–372. Cham (Switzerland): Springer.
Sieckmann, J-R. 2018. Rechtsphilosophie. Tübingen: Mohr Siebeck.
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Wintgens, L.J. 2012. Legisprudence. Practical Reason in Legislation. Aldershot: Ashgate.
Chapter 7
Proportionality in Lawmaking
An Attempt of Justification in the Light of both a Constitutionalist
and an Argumentative Conception of Law

Gema Marcilla *

Abstract The judgment of proportionality—i.e. the weighing or balancing of two or more competing
legal principles—is often said to be the core of legal reasoning. One of the premises underlying such a
contention is that judges (should) adhere to a non-positivistic legal approach: when justifying their
rulings, that is, they are certainly “bound by the Law”, but not as this is understood within legal
positivism. A non-positivistic conception of law entails the claim that judges interpreting and applying
legal norms do combine, in fact, legal and moral reasoning. On the other hand, constitutionalism, as a
paradigm in law and jurisprudence, implies that a culture of justification extends to all public authorities,
i.e. not only to the executive branch and the judiciary but also to legislatures. Thus, the sole fact that a
parliament has been democratically elected is not enough to entirely satisfy its claim to legitimacy—in
other words, winning elections cannot be the only basis of legislative authority. Against this backdrop,
the focus of this chapter is to explore the possibility of broadening the principle of proportionality, as
characterized by Robert Alexy, to legislative decisions. Additionally, and in connection with the non-
positivistic legal approach just mentioned, the second part of the essay will highlight some
misunderstandings about the study of lawmaking which one can find in the province of legal theory.
Keywords Alexy • Proportionality • Legal drafting • Lawmaking • Constitutionalism • Post-positivism

7.1 From the Principle of Proportionality in Legal Reasoning to a General

Culture of Justification in Public Decision-Making
Many legal scholars consider the “principle of proportionality” to be the core of legal
reasoning, especially regarding constitutional adjudication. Constitutional law is said to include
plenty of principles. Roughly speaking, “principles” differ from “rules” in that the former are

G. Marcilla ()
Facultad de Derecho, Campus de Albacete, Universidad de Castilla-La Mancha
Plaza de la Universidad 1. E–02071 Albacete (Spain)
e-mail: [email protected]

This contribution is part of the Research Project DER2017-82484-P (“Precedent and legal reasoning. A
comprehensive vision of precedents in civil law systems”), directed by Marina Gascón and Leonor
Moral, and supported by the Programa Estatal de Fomento de la Investigación de Excelencia of the
Spanish Ministry of Science and Innovation (MICINN).
*
7 Proportionality in Lawmaking 130

more general or more undetermined than the latter. Actually, this difference is not substantial,
but only gradable, i.e., it is not possible to classify a constitutional or legal statement within
one type or another. However, the distinction is useful because the more one statement
characterises as a principle, the more controversial becomes to determine in which cases it
should or should not be applicable. Principles, that is, are related to the so-called hard cases.
On the other hand, when the meaning of a constitutional statement is a principle, in a more or
less explicit way its status is higher than the status of any legal rule.
Any (constitutional) principle may be considered, as Robert Alexy does, an “optimisation
requirement”. 1 Conceiving principles this way—as optimisation requirements or commands—
helps to solve hard cases that arise, precisely, because of the inherently “conflictive nature” of
principles, i.e., because they constantly collide with each other. Following Alexy’s account,
any principle demands that something (its content) be realized to the greatest extent possible
under certain factual and legal possibilities. The factual possibilities are given by the
circumstances. The legal possibilities are determined by opposing principles. In other words,
sometimes a case lacks a straightforward legal answer since it may be taken to be within the
scope of two or even more principles at the same time—e.g., a behaviour which consists in
disparaging a racial, sexual, or ethnic group, or a member of such a group, can be considered
as a legitimate exercise of the fundamental freedom of expression, or be subsumed within a
hate speech conduct that is banned by Law. Constitutional principles are relevant not only when
it comes to applying the constitution—think, for instance, of the judicial review of statutes—
but also in common cases, since principles underlie legal rules. Thus, the “conflictive nature”
of constitutional principles emerges in ordinary cases as well. In addition, such hard cases may
also arise when several colliding constitutional principles offer a different response to a legal
loophole.
Solving hard cases implies striking a balance among different colliding legal principles. The
“proportionality test” provides courts with criteria to explicitly justify the result of this balance.
In other words, to give reasons regarding which principle has to prevail in each particular case.
For instance, in Alexy’s characterisation of proportionality or legal balancing, the validity of
every legal statement should be assessed by the court under the criteria of its suitability,
necessity and proportionality in the narrow sense. 2
From this perspective, legal reasoning widely consists in assessing whether something that
is stipulated by law—for instance, a penalty of life imprisonment for certain crimes—can be
regarded as acceptable, reasonable, or, definitely, proportionate under consideration of the
benefits, but, above all, of the costs and sacrifices, especially in terms of other legal principles
which equally deserve constitutional protection.
Two legal conceptions boost the prominence that the judgement of proportionality has
gained both in legal doctrine and jurisprudence may be associated with the rise of two legal
conceptions: constitutionalism and non-positivism. The first one, which may be labelled
institutional, justifies the need for law’s reasonableness by emphasising the hierarchical
supremacy of constitutional principles. The other, referred to as methodological, holds that the
Law raises a claim to correctness and conceives fundamental rights, and, in general, primary

1
See Alexy (2002).
2
See Alexy (2014: 52).
G. Marcilla 131

values of the community, as intrinsically tied to a practical or reasoning based on the weighing
of reasons under given legal and factual circumstances. 3
On the one hand, the constitutionalist paradigm might be considered the main basis of
proportionality. This paradigm refers to the meaning of the rule of law in constitutional states,
i.e. in states where a written constitution—including individual and social rights—is binding
on both citizens and public powers. In such states, the rule of law means that judges deciding
cases do “take constitutional principles seriously” (Prieto 2013), particularly those principles
that guarantee individuals’ rights. 4 On the other hand, a pragmatic and argumentative
conception of the Law also offers a basis to explain the significance of the principle of
proportionality: The Law should not be essentially regarded as a legal system or a set of norms,
but as an argumentative practice with the purpose of solving problems that may arise in plural
societies. According to Alexy, legal reasoning is “a special case” of moral reasoning. The
reason why it is a “special” case derives, first of all, from the fact that legal reasoning takes
place precisely within the limits and conditions established by statutes enacted by parliaments,
precedents, procedural norms, dogmatic interpretations, and so forth. Indeed, in spite of being
bound by all these legal statements and conditions, judges often have and exercise a law-
creating power, whereby some decisional leeway is unavoidable. However, this judicial margin
of subjectivity or discretion can be minimised or handled throughout legal-moral reasoning,
which identifies itself as the justification of the resulting balancing of moral principles.
To sum up, we see that both constitutionalism and post-positivism adhere to what might be
called a culture of legal-moral justification of courts’ decisions, with such a culture directly
reflected in the proportionality judgment enhancement.
When taking a closer look at legislatures, one realises that they are as interwoven with this
culture of justification as the judiciary is, or even more. From the institutional perspective, the
rule of law, in the framework of a compulsory and enforced constitution, stipulates that the law
enacted by parliaments ought to fit in the constitutional order, though being an expression of
the majority’s will. 5 From the methodological perspective of a necessary connection between
legal and practical reasoning, parliament’s legitimacy does not only nor primarily derive from
winning elections or from embodying the majority’s will. Legitimacy goes beyond the fact that
such political parties have won the elections; it also requires that discursive and deliberative
procedures base legislative actions. Thus, the model adopted to assess how to take public
legislative decisions is the ethical-moral discourse, i.e. the exchange of moral reasons under
ideal circumstances. At least, this is the model that outstanding political philosophers, like
Habermas, stand for. Undoubtedly, actual democratic procedures are far away from such an
ideal discourse. However, if parliamentary legislation is deemed the most legitimate method to
take important decisions affecting our living-together in modern societies, it is precisely
because parliamentary enactments are supposed to follow this paradigm.
Therefore, this paper will aim to show that the principle of proportionality, the way it
fundamentally works in the field of jurisdiction, offers a valid starting-point pattern for
lawmaking. If this ratio can be considered a reliable method to justify and legitimise judicial
decisions, especially in hard cases, why not apply the argumentative structure provided by the

3
García Figueroa (2017: 523–547) connects both perspectives, i.e. constitutionalism and postpositivism,
with the meaning of the principle of proportionality; in the referred article he focuses on discussing and
rejecting Alexy’s Exklusionstheorem, though.
4
Prieto (2013).
5
In this regard, Oliver-Lalana (2018) focuses on the “quality of legislative debate” as a yardstick for
adjusting the degree of due deference in the judicial review process (see Chap. 9 in this volume).
7 Proportionality in Lawmaking 132

principle of proportionality to decisions taken by other public authorities such as legislatures?

In other words, my proposal is to discuss the principle of proportionality as a basis for a
theoretical and practical approach to “Legisprudence”—a legal theory of legislation, in Luc
Wintgens’ terms. 6 At this point, it is worth recalling that Wintgens has been a pioneer in
shifting jurisprudential inquiry from judicial reasoning to legislation, with his work setting the
standard for the philosophical study of legislation; and that Wintgens has played a leading role
in the institutionalisation of the study of legislation within the greater framework of legal
theory.
In this connection, let me also highlight the contribution of Spanish legal theorist Manuel
Atienza to the legisprudential project. It is fair to recognise that he has undoubtedly gone deeper
than other authors in distinguishing the variety of angles involved in the task of rational
lawmaking. In his view, legislation legitimacy is reinforced during the law-making process if
the legislator makes sure that the law is rational according to the following levels (Atienza
1997): the result of this process has to be a clear text (R1, linguistic rationality), and a
systematic one, in the sense that it has to fit into the legal system (R2, logical-formal
rationality); 7 besides this, legal norms must be suitable for being complied with by citizens and
public authorities; (R3, pragmatic rationality); in addition, norms should be able to achieve the
political goals they pursue (R4, teleological rationality); finally, and above all, the legislator
has to bear in mind that the benefits for a given constitutional principle which a legislative rule
produces at the expense of others—especially of rights-protecting principles—, cannot justify
whatever legislative contents, for such benefits must be indispensable and necessary and, in
the last analysis, proportionate to the damages that are caused to other principles (R5,
axiological rationality). 8
Nevertheless, as Atienza notes about the evaluation of the validity of a legislative statement,
the criteria cannot be straightforwardly extrapolated from the judicial to the legislative field.
The extension of the judicial-balancing criteria to legislative reasoning would be an
oversimplification that would not consider that legislation and jurisdiction are institutions that

6
Wintgens is a pioneer in criticising standard legal theory for largely ignoring the role of legislator—a
role which remains undertheorised—, and for dwelling on the false premise underlying the “legalistic”
approach to legal studies, namely that the law is the result of political decision-making within the impure
realm of politics—whereas the realm of law would be the place for neutral and objective methods of
reasoning and decision making. Wintgens (2012) provides an indispensable new perspective for legal
theory, focusing on “the role of practical reason in the creation of legal norms upon which norm givers
are considered not merely political actors but legal actors as well”. Of course, he is not alone in the
legisprudential project: a number of authors including very well-known legal theorists have inspired and
contributed to his approach (Wintgens mentions, among others, Aarnio, Alexy, Atienza, Bankowski,
Besson, Calabresi, Campbell, Gardner, MacCormick, Michelmann, Oliver-Lalana, Ost, Paulson,
Peczenik, Sartori, Teubner, Timmermans, Tropper, van der Kerchove, Voermans, Waldron, or Xanthaki,
among others). On the place of legisprudence in legal studies, see further Chap. 11 and Chap. 12 in this
volume.
7
As explained in Chap. 8, Atienza now prefers the phrase “systematic rationality”.
8
After having identified these five levels of rationality, Atienza adds a level of efficiency as a transversal
kind of rationality which implies achieving a balance between all other levels (upon considering the
goals of legislation). For instance, clarity and systematicity might be pushed into the background if,
though contributing to legal certainty, they are an obstacle to political consensus. With a focus on this
criterion of lawmaking efficiency, in several of his writings Atienza has outlined a detailed model of
argumentation in the context of legislation. See, among other works, Atienza (2018; Chap. 8 in this
volume). Díez-Ripollés also refers to the ethical or axiological level of legislative rationality. However,
he links this level of rationality to “social ethics” rather than to“critical ethics”. In his view, when an
ethical controversy arises, it is a political agreement on convictions that solves this controversy, instead
of legal-moral reasoning. See his contribution to this book (Chap. 3).
G. Marcilla 133

work in a very different way. Avoiding this kind of simplification is the reason why the
proposal for this contribution is just pointing out that proportionality judgement, in its central
lines, might open a path towards better legislative reasoning on the basis of judicial balancing.
We might, that is, take advantage of current legal reasoning studies on proportionality, and
infer some guidelines which help to improve the law-making process—yet, as Atienza stresses,
we should not forget the differences between the legislative and the jurisdictional contexts of
argumentation.
As shown in previous contributions, with certain singularities, the judicial approach to the
principle of proportionality within the constitutional review of statutes could also be
implemented by legislatures concerning the text they are enacting, “in advance”, i.e., before
the text is definitively enacted. Indeed, this legislator’s justification task is somehow done
throughout the process of legislative drafting, as reflected, e.g., in preambles or statements of
reasons preceding statutes. The outcome from this justification task is noticeable in formal,
institutionalised aspects of lawmaking, like the text resulting from parliamentary works and
discussions.
However, the more the legislative process is carried out outside the institutional framework,
the less explicit the reasons for the concrete lawmaking adopted measures are. As a
consequence, the more dramatic the differences between jurisdiction and lawmaking seem to
be, in terms of legal reasoning. This sort of “para-institutional” lawmaking activity takes place
especially in pre-legislative phases, but not only there.
In short, when discussing how to apply the principle of proportionality to lawmaking,
contextual differences between jurisdiction and legislation as regards argumentation have a
colossal importance. Yet, these differences should not prevent us from extending this principle
from the province of jurisdiction to the province of lawmaking. This extention should not be
confined to the type of legislative reasoning which takes place during the highest
institutionalised phases of the lawmaking process, as it is reflected e.g. in government bills,
parliamentary debate minutes or enacted rules. Proportionality should also play a role in
informal law-making activities, which may even be even more crucial than the formalised ones.
Thus, political activity, based on making explicit and weighing the preferences and the reasons
for a given policy, may prevent from the lack of transparency when it comes, for instance, to
deciding when to start a given policy. Alternatively, it may prevent from the lack of publicity
regarding lobbies’ pressures on legislation and legislators. 9 Both underground preferences and
lobbies’ pressures are facts that may quite easily preclude lawmaking from accomplishing its
mission to serve the general interest. 10 Undoubtedly, for the culture of legislative-legal
reasoning or justification to progress, there is much work to be done in such informal arenas.

7.2 Misconceptions Related to Legislation Studies

9
On legislative lobbying, see further Chap. 10 in this volume.
10
As Calvo highlights (2018), a closer look at the contexts and new realities of “regulation” reveals a
transition from the regulatory State to a post-regulatory State that incorporates these new developments
in state regulation and deploys new regulatory techniques of private nature that even replace official
regulation in some areas, especially in economic and financial matters.
7 Proportionality in Lawmaking 134

7.2.1 First Misconception: Legal Science Unduly Marginalises the Study of the
Quality of Laws (for Which There is No Basis)

Law-making studies (Gesetzgebungslehre, according to Noll’s terms 11) stand for enlarging the
field of legal studies so as to include the creation of law by the legislator. 12 This starting point
is heterodox not only from the perspective of “traditional” legal studies: neither does current
legal scholarship seem to endorse it. Therefore, before analysing whether the principle of
proportionality could be as useful in law-making reasoning as it is in judicial reasoning, it
seems convenient to present a series of arguments that justify why legal sciences should address
not only problems of interpretation and application of law, but also the process of its legislative
production.
First of all, the predominance of a focus on law interpretation and application in legal studies
needs to be approached in the light of the changes occurred, especially over the 18th and 19th
century, both in the notion of scientific knowledge in general and in the notion of scientific
legal knowledge in particular. Actually, concern about both the contents and the forms of
legislation was a main legal scientific issue for the Enlightenment’s philosophy—whose legacy
was the French and the European codification movement. 13 Nonetheless, legislation and
codification totally lost its scientific aureole at the beginning of the 19th century. This was due
to the radical turn in the scientific paradigm. From then on, academic interests were confined
to formal and empirical sciences; a turn that, as far as legal knowledge is concerned, was
reflected in the transition from iusnaturalism to legal positivism. Obviously, if seen in the light
of this new legal scientific model, the exclusion of lawmaking made sense: legislation is an
expression of human will; it is a manifestation of political desires, and politics is entirely alien
to proper science—i.e. it is neither consistent with nor apprehensible by means of rigorous
scientific schemes. Accordingly, modern legal science, which was born around the exegesis of
Napoleonic codes and around the formal analysis and distillation of legal concepts, has focused
on the interpretation and application of the law, and has completely ignored the law-making
process. This jurisdiction-oriented legal science has been reproduced in the programs and
syllabi of most schools of law, which, even in our times, normally lack specific subjects related
to legislation.
Secondly, this neglect of legislation became a misconception when legal formalism starts
declining. “Jurisprudence is not a science” is the title of the famous lecture given by Julius von
Kirchmann in 1847. And some years later, in 1868, Ihering asked himself: Ist die Jurisprudenz
eine Wissenschaft? However, over the 19th and 20th centuries legal science was significantly
improved, and, even if legal science does not comply with the paradigm of formal or empirical
sciences, we do not discredit it as irrational. And something similar should apply to legislative
science. The law-making process is surely difficult to grasp from the perspective of scientific
knowledge, but this cannot be a sufficient reason for considering that lawmaking is completely
irrational.

11
Noll (1973).
12
Authors like Ulrich Karpen, currently a board member of the International Association of Legislation
(IAL), have contributed to this area both as jurists and as politicians (Karpen 1986; 2008).
13
Following the steps of enlightened authors such as Beccaria, Bentham or Montesquieu, the Italian
legal scholar Gaetano Filangieri coined the term “science of legislation” in his six-volume essay entitled
Scienza della Legislazione (1780/1785). The book was translated into several languages and had a great
impact on the modernisation of both the European and American legal system, especially with regard to
the need of accuracy when drafting criminal norms and penalties, as well as to the need of focusing on
due process guarantees when drafting criminal procedural norms. See Maestro (1976).
G. Marcilla 135

The lack of interest in political lawmaking is still understandable from the viewpoint of both
legal realism—which claims that nothing but objective knowledge is important for legal
science—and modern, renewed legal positivism—which stresses the Hartian thesis on judicial
discretion. By contrast, the neglect of lawmaking among the non-positivistic theories of legal
reasoning (those who follow, say, Alexyan and Dworkinian lines) is somehow unwarranted. In
a manner, legislation has been neglected by these theories “out of habit”, and not on specific
theoretical grounds. If moral reasoning is a legitimate method to manage or to reduce the legal
interpreter’s discretion, why not try to explore the potential of moral reasoning in the field of
politics, in the field of lawmaking?

7.2.2 Second Misconception: Considering that Legal Scientists Have Not

Reflected on the Legislative Task

A juristic misconception on legislation has therefore been to marginalise legislative drafting or

lawmaking in contrast with adjudication—and we have seen two arguments that explain but
also refute this perspective. Yet, a second misconception has been to claim that legal science
has not reflected “at all” on the legislative task. This is, at the very least, inaccurate. Actually,
some juristic interest in legislation is demonstrated by numerous studies on the law’s crisis
phenomenon. 14
Particularly in recent times, the quality of legal statutes and regulations has been an issue
that has concerned jurists. Yet, it is also true that lack of legislative quality has mainly been
considered when it has resulted in negative effects on legal interpretation and application, i.e.,
when it could affect legal certainty, whereas other approaches to quality which focus e.g. on
the capacity of laws to solve social problems or on laws’ political legitimacy have been less
visible. In other words, studies on the law’s crisis remain somehow biased in that they
prioritise, in the end, the tasks of interpretation and application of positive law. Therefore, most
of these studies have focused on formal flaws of the laws, such as lack of clarity, lack of
coherence, lack of systematicity in relation to preexisting legal rules, and the like. The cause
of this bias in legislative studies is that the most important issue for them is the fact that all
these flaws can become a problem for a judge who is bound by the rule of law; ultimately, that
is, the underlying concern seems to be an eventual infringement of institutional tenets such as
separation of powers or legal certainty.
The attention given to the law’s crisis (under the perspective legal certainty) opened the
path for a specific type of studies on legisprudence which are related to aforementioned levels
of linguistic or formal legislative quality. In the last decades, however, the law’s crisis has been
gradually approached from a sociological as well as from a political point of view, 15 and even
from an axiological perspective. What these and similar approaches have demonstrated is that
law is not only defective when it lacks clarity: it is also defective, or even harmful, whenever

14
Carnelutti (1930) is the first one who referred to this phenomenon as crisi della legge. After that he
addressed La crisi del Diritto (1946) and La morte del Diritto (1953). See also Ripert (1949). In the
nineties, some Spanish legal theorists deepened into the relationship between the gradual rise of legal
drafting studies and the law crisis phenomena. See Laporta (1994); Hierro (1996); Prieto (1998).
15
In this regard, see, for instance, the book recently edited by Araszkiewicz and Pleszka (2016), who
show how contemporary logic may be useful to analyse legislative drafting and reasoning, even if one
considers that the process of lawmaking includes political, social or economic aspects. These aspects
stimulate a number of inquiries about the role of logical tools in lawmaking—which does not diminish
the significance of logical analyses of law.
7 Proportionality in Lawmaking 136

it is conceived of as an instrument to serve merely propagandistic purposes, as it happens with

“symbolic legislation”. 16

7.2.3 Third Misconception: Approaching Lawmaking from Just One Concept of

Law

Thus far I have attempted to show that there are no compelling reasons for legal disciplines to
ignore legisprudence and also that reflection on the quality of laws has recently begun to
acquire importance, particularly since the decline of the legal-formalistic paradigm. As
mentioned, however, this concern about rationality in lawmaking is often biased, in the sense
that only the linguistic and the formal aspects of legislative rationality have been payed
attention. It is obvious that reducing the semantic indeterminacy of legal norms and improving
their systematicity are important challenges, for lack of clarity and systematicity significantly
affect the role of jurisdiction. But this should not prevent us from discussing other problems,
particularly the shortcomings or defects of legislation as an instrument for social engineering—
which, for the most part, have been ignored in legal science. And, of course, the same goes for
the legitimacy of laws, i.e. for their axiological rationality—a subject that has been largely
excluded from legal knowledge, and has been located in the domain of ethics. This exclusion
derives from sceptical approaches to metaethics underlying legal realism and also current legal
positivism. 17 Yet, from the viewpoint of non-sceptical metaethics, which is the perspective that
underlies non-positivistic theses on, or conceptions of, law, the legitimacy of legislation does
matter.
These contentions reveal that there are several approaches to legisprudence. In previous
works, taking into consideration Jerzy Wroblewski’s (1987) investigations and related ideas
advanced by Virgilio Zapatero (1994), I have distinguished between two major approaches to
legisprudence: the minimalist and the maximalist. However, now I would rather distinguish
between a narrower and a broader approach to legisprudence. 18 The first deals only with
formal and instrumental aspects of legislation and has no concern for to the political and
legitimacy aspects of legislation. The second approach—while not neglecting the importance
of the quality of the law from a formal and instrumental perspective—extends its scope of study
to the legitimacy of legislation.
There are some approaches to legislative drafting that are not so narrow in scope, i.e that do
not only concentrate on linguistic and formal aspects, but neither is their scope so wide as to

16
The concept of “symbolic legislation” is complex. Symbolic legislation could be understood as a kind
of legislation serving politicians’ propaganda purposes, whereby the actual need of legislating is not
considered. In this connection, symbolic legislation has been often associated with “populism” and
“demagogy”. This is especially worrying when it comes to penalising behaviours, for both material and
procedural guarantees are thereby sacrificed. See, for instance, Campbell (2008); Hunt (2012); Díez
Ripollés (2017); Pratt and Miao (2017). On a different, non-pejorative understanding of symbolic
legislation, see Bart van Klink’s piece in this volume (Chap. 4).
17
Here, the phrase “current legal positivism” is meant to cover those conceptions of law which endorse
both the “social sources thesis” and the claim that there is not a necessary relationship between law and
morals (“separation thesis”).
18
Maximalism has been related to objectivist ethics and political views. See, for instance, Khan (2006).
Needless to say, both terms—minimalism and maximalism—have a different meaning in philosophy of
language. On the differences between the minimalist (say, Austinian) and maximalist (Strawsonian)
programme from a law and language perspective, see, for instance, Stelmach and Brozek (2006: 77).
G. Marcilla 137

include the issue of the legitimacy of legislation. For instance, Helen Xanthaki’s theory of legal
drafting is an example of such approaches. This author’s main concern is the “effectiveness”
of legislative provisions, and she hence focuses on the capacity of legislatures, working jointly
with further actors in the policy process, to produce the desired regulatory results. Nonetheless,
her perspective might be still considered a little bit narrow, at least if it is compared to those
conceptions that put a specific accent on legitimacy issues. 19
Having drawn a distinction between narrower and broader approaches to legisprudence, it
is easy to realise that these approaches entail in turn different positions on two further points:
each of them tends to have a different concept of constitutionalism, and also a different idea
about the relationship between law and morals.
The narrower approach proves to be coherent, on the one hand, with a so-called “weak”
constitutionalism that takes democratic majorities seriously; and, on the other hand, with the
discretion and separation theses typical for current legal positivism (which claims that legal
interpreters have an unavoidable margin of discretion, and that there is only a contingent
relationship between law and morals). The broader approach, instead, can be easily associated,
on the one hand, with a “strong” constitutionalism that takes constitutional principles seriously,
even if this view entails the risk of placing judges in a higher position than legislators, and thus
of disregarding the majority rule. On the other hand, the broader approach correlates with a
non-positivistic conception of the legal system which is based on a discursive and constructivist
metaethics.
Therefore, in order to outline a balancing-based approach to legisprudence, one needs to
adopt a broader approach, since this will make it possible to account not only for the formal
and sociological elements of lawmaking, but also, and above all, for its procedural and
substantive elements, that is, for the legitimacy of both the legislative activity and of its results.

7.2.4 Fourth Misconception: The Darkest Side of Politics is an Obstacle for

Legislation Studies

Legisprudence would not make sense within a legal conception according to which legislation
do not respond to any kind of rationality, as García-Amado has explained (2000). That is why
an utterly realistic vision of legislation, which only points at the darkest side of politics, would
square with the idea that legislation and jurisdiction are governed by radically different “logics”
or “rationalities”.
Yet, a legisprudential approach becomes plausible when an institutionalised conception of
lawmaking comes to the fore. Such a conception assumes the fact that the functioning of
legislative bodies and proceedings is predetermined by norms, and that these norms, in general,
are established with the intention of effectively guiding the addressees’ behaviour and serving
valuable political purposes. 20

19
See her chapter in this book (Chap. 2).
20
García-Amado relates legal-reasoning and legislative drafting to diverse conceptions of the rule of law
(“Estado de Derecho”). In his view, lawmaking makes sense once a legal system complies with at least
certain formal requirements, as Lon Fuller pointed out (1964). See also Zapatero’s contribution to this
book (Chap. 1). Zapatero also claims that legislative drafting should be based on formal patterns.
Lawmaking requires general, public, non-retroactive, clear, consistent, stable, feasible norms. These
ideas, born in classical Athens, “resist the passage of time”, and “constitute one of the main elements of
the rule of law” insofar as according to Joseph Raz, “the law should be such that people will be able to
7 Proportionality in Lawmaking 138

Let us be aware that the more a legisprudential approach tries to go beyond the formal levels
of rationality, and the more it tries to “bridle” politics—thus coming nearer to the broader
approach—, the stronger the objection about its lack of realism will be. An extremely broad
approach to legisprudence appears to be naive. In fact, here we meet with two different, albeit
interrelated obstacles. First, the very idiosyncrasy of politics; and second, the current crisis of
the Nation-State.
By the idiosyncrasy of politics, I mean the unavoidable distance between the democratic
model and the true reality of day-to-day politics. This distance is unsurmountable, but, still, the
question is whether imperfections in the functioning of representative institutions (parliaments)
do completely preclude rational lawmaking.
On its part, the crisis of the Westphalian model of Nation-State 21 would demonstrate the
fall or decline of “politics” as contrasted with the ever-increasing strength of “economy”. And
here the question is whether current tendencies to curtail the role of public, state institutions in
decision-making—and, in return, to expand the regulatory role of economic and financial
institutions or corporations—makes legislative rationality simply impossible. In this regard,
the suspicion that economic globalisation is damaging the core of democracy seems justified,
at least if one takes a close look at the non-institutionalized ways in which public decisions are
made nowadays.
Notwithstanding all this, the significance of legislative reasoning does not vanish only
because of spurious interests, corruption practices and lobbying which may find in the realm
of politics. They have always been there. It is thus a challenge for the theory of legislative
reasoning to further study these phenomena, helping to institutionalize them inasmuch as they
have a bearing on the task of lawmaking.

7.3 The Principle of Proportionality as a Way to Make Progress in

Legislative Reasoning

7.3.1 Lawmaking and Adjudication Are Not Essentially Different Ways of Legal
Reasoning

be guided by it”. However, a harder concept of lawmaking may be necessary. In this regard, Bart van
Klink (2018, Chap. 4 in this volume) compares what he calls LAS (Law as Symbol model) to LAI (Law
as Instrument model). In the first model, legislation has authority to the extent that it can be proven to
be the outcome of social interaction between the legislator and various social actors and to give
expression to fundamental values. Within the LAI model, authority becomes indistinguishable from
power, since there are no reasons to offer to accept the state’s claim to legitimacy. Law is a series of
commands or directives that the legislature imposes on society to achieve specific policy goals without
no intrinsic moral value. It consists of detailed norms that are backed up with sanctions. Bart van Klink
recognises that he finds a formal notion of authority more appealing. However, the LAI model fails to
provide a moral foundation of the formal notion (authority) it endorses.
21
The construction of the European Union is a clear example of the crisis of the Westphalian State.
Constitutionalism and cosmopolitism are, respectively, appropriate normative and moral models for this
progressive construction. Further research is needed in this field which provides for a realistic foundation
of supra-national organisations. Turégano (2018) analyses different models in order to deal with this
pervasive problem.
G. Marcilla 139

Connecting judicial and legislative reasoning is only a first step to refine legislative reasoning
by means of the principle of proportionality. Legislation and jurisdiction, as Atienza observes,
present institutional differences that predetermine their way of reasoning. And this certainly
points at the need of developing argumentative models adapted to each of both fields. As noted
earlier, however, I think that a joint model is needed which accounts for the common ground
shared by legislative and adjudicative reasoning. Here, the principle of proportionality offers
a fine starting point for at least two reasons.
First of all, legislation—like adjudication—could be seen as a moral reasoning context.
Obviously, legislation has some singularities, but the way of reasoning should not differ from
adjudication. In fact, the model for adjudicative legal reasoning, according to Robert Alexy’s
interpretation, is based on the Habermasian “ideal speech situation” theory. And, precisely, the
Habermasian ideal speech situation is the model underlying parliamentary procedures as
well. 22
Secondly, I believe that legislative and adjudicative legal reasoning have more in common
than it may seem at first sight. The similarities between them could be illustrated by resorting
to Max Weber’s contraposition between the ethic of conviction (“Gesinnungsethik”) and the
ethic of responsibility (“Verantwortungsethik”). I do think that the ethic of responsibility, and
not ethic of conviction, is the basis of proportionality or balancing in legal reasoning, at least
according to Alexy´s interpretation of the principle of proportionality. 23
The ethic of responsibility defines politicians’ actions. According to Weber, these actions
are guided by both types of morality, so that politicians who are principally guided by an ethic
of responsibility do not lack convictions, in the same way as those who act following
convictions or fundamental principles have a sense of responsibility as regards consequences.
However, under extreme conditions, both attitudes may contradict each other. Ultimately, the
ethics of responsibility, which are the ones that should be applied in politics, imply priotitising
political success over overly stringent defences of fundamental principles, and the ethics of
conviction imply subordinating necessities to convictions—both necessities and convictions,
tough, may be “ethical” within a given conception of morality. 24 Therefore, according to
Weber, politicians are not totally guided by either the ethic of responsibility or the ethic of
conviction, whereby in case of conflict between them the ethic of responsibility is more in line
with the nature of politics.
Now, let us move on to the proportionality principle: according to Robert Alexy, a judge
who has to decide between colliding principles has the responsibility to decide on the priority
of one of the principles in conflict, under certain legal and factual circumstances. This way,
proportionality does not completely avoid sacrificing, at least to some extent, certain principles
that are deemed fundamental. What is avoided is that such a sacrifice is disproportionate with
respect to the benefits. That is, Alexy’s view of proportionality is based on a responsible cost-
benefit assessment. These costs and benefits refer to worthy legal goods, like individual rights
and political goals. Yet, from Alexy’s perspective there are no hierarchically superior, absolute

22
Atienza (2018) holds a different view in his contribution to this book (Chap. 8, Sect. 8.4).
23
Marcilla (2018, forthcoming).
24
Weber says: “Denn Parteinahme, Kampf, Leidenschaft – ira et studium – sind das Element des
Politikers. Und vor allem: des politischen Führers. Dessen Handeln steht unter einem ganz anderen,
gerade entgegengesetzten Prinzip der Verantwortung, als die des Beamten ist (…). Gerade sittlich
hochstehende Beamtennaturen sind schlechte, vor allem im politischen Begriff des Wortes
verantwortungslose und in diesem Sinn” (Weber 1919: 32, italics added).
7 Proportionality in Lawmaking 140

purposes; not even the principles that protect individual rights have an unconditional priority
over policies or collective goods; not even “human dignity” has such a priority. 25
The principle of proportionality is also behind Jan Sieckmann’s approach to lawmaking. 26
To be more accurate, he approaches lawmaking not from the perspective of proportionality but
from that of balancing. Furthermore, from the german proffesor’s perspective, the principle of
proportionality and balancing are not exactly the same thing, since proportionality refers to one
of the formulations of balancing as an argument used to decide on the optimisation of colliding
courses of action. Sieckmann distinguishes between two scenarios in which legislators may
find themselves: the first refers to a law-making situation where fundamental rights are not
involved; by contrast, the second one refers to a law-making situation where fundamental
rights are involved. Utilitarian balancing may be adequate where fundamental rights are not at
stake, though still facing some problems, as Sieckmann recognises. However, this utilitarian
balancing fails to give an account of lawmaking when fundamental rights are actually at stake.
In this case, some balancing of rights is needed, but it cannot be a utilitarian one if we conceive
of fundamental rights as a sort of “firewall”—indeed, the very idea of a firewall excludes
balancing. However, fundamental rights do not exclude balancing altogether. They only
exclude sheer consequentialist balancing. Therefore, balancing could be applied to lawmaking,
even when fundamental rights are at stake—as a matter of fact, fundamental rights are almost
always at stake when it comes to lawmaking.
Sieckmann may thus partially agree on the thesis suggested in this chapter. In a manner, he
seems not to fully reject Alexy’s notion of principles as optimisation requirements, though he
stresses that, in using this notion, the problem remains of defining what an optimal solution is.
Regardless of this and other disagreements between Alexy and Sieckmann, neither of them
proclaim to rely on consequentialist ethics as a basis for their theory of fundamental rights.
Yet, neither do they support deontologist ethics unconditionally. While both Alexy and
Sieckmann agree on the need to balance fundamental rights, they by no means fall into
utilitarianism. For this reason, their theories on the principle of proportionality and on
balancing seem to be especially useful to deal with law-making reasoning. While ruling out a
severe injury for a fundamental right, law-making reasoning has to consider the general
interest, that is to say, the global positive effects of a policy. The injury of a fundamental right
as a consequence of the application of the law in a concrete case is a matter to be solved by the
jurisdiction, and, at this regard, the preeminence of utilitarian considerations could be arguable.
Having said that proportionality might be the basis of both adjudicative (judicial) and
legislative legal reasoning, the singularities of legislative reasoning must not be overlooked.
As Atienza (2018) points out, only by accounting for these singularities can we develop a
workable model for legislative reasoning which may eventually inspire the design (or redesign)
of democratic representative institutions. And here, the ultimate objective would be to have
lawmaking institutions in which the legislative activity reaches satisfactory levels of
rationality, and also ensures that the legislative result (the enacted law) is rational from a
linguistic, logical or systematic, pragmatic, teleological and axiological point of view—and
also from the point of view of efficiency, in the sense that it should reach, at a reasonable cost,
acceptable levels of rationality in all these five aspects.

25
Alexy (2015).
26
See Sieckmann’s chapter in this book (Chap. 6).
G. Marcilla 141

7.3.2 Distinguishing Legal Reasoning in Lawmaking from Adjudicative Legal

Reasoning

I would like to conclude this paper by highlighting three differences that, to my mind, are very
relevant when it comes to analysing legislative reasoning in the light of the criteria derived
from the principle of proportionality—and, ultimately, from balancing. These differences
concern: 1) the institutional role of judges and legislators; 2) the commitments underlying their
respective tasks, i.e. adjudication and lawmaking; and, finally, 3) the objects, forms, and places
of both judicial and legislative legal reasoning.

7.3.2.1 The Institutional Role of Judges and Legislators

At first sight, the main difference between the argumentation carried out by legislators and the
one carried out by judges has to do with the fact that legislators acts as “social engineers”. That
is why, when designing policies, they must not only choose which legislative measures are to
be taken, but also anticipate or predict the multiple scenarios that their legislative activity could
generate. On the contrary, judges must deal with a political scenario which is already given, in
the sense that political circumstances have been converted into written statutory law or legal
regulations that cannot be altered judicially. Notwithstanding this limit, statutes and regulations
are often uncertain, so interpretation may be needed; and, while interpreting them, judges also
have some margin of political discretion. Moreover, inasmuch as (constitutional) judges have
to assess the constitutionality of legislation and eventually to strike down unacceptable
legislative measures, it is obvious that they also have some margin of legal creation. However
broad this judicial margin of decision may be, there is nevertheless a huge difference between
legislators and judges in this respect: the most crucial aspect of legislative reasoning is to steer
or guide the prioritisation of legislative purposes—in a sense, lawmaking can be said to consist
in prioritising some political objectives over others. Still, here we find a similarity between
judicial and legislative legal reasoning: constitutional constraints. I mean that, although
legislators have an enormous decision-making power, they have to bear in mind that there are
illegitimate objectives (i.e. forbidden by the Constitution) which they are banned from
pursuing, 27 as well as “compulsory” objectives (i.e. mandated by the Constitution) which they
ought to pursue. Regarding the latter, the regulation of fundamental rights or of the electoral
system has to be issued by the legislator, without any delegation to the executive power. Also,
if the legislator fails to comply with the obligation of regulating political or social rights so that
these become effective, it could be said that the legislator commits a constitutionally forbidden
omission.

7.3.2.2 The Legislator’s and the Judge’s Priorities

27
Ferrajoli stipulates an unusual meaning for “antinomies” and “legal loopholes”. For him, antinomies
are the result of a law-making defect consisting in drafting a legal statute which violates material
constitutional norms; and legal loopholes are the result of a law-making defect consisting in omitting the
drafting of a legal statute that must be drafted according to a constitutional norm. See Ferrajoli (2013:
vol. I. Chapter IX). Therefore, the Italian author shows a huge interest in “the science of legislation”. In
fact, he considers judges’ discretion a result of bad-lawmaking practices (Ferrajoli 1996). Yet, it is
difficult to conciliate his view of a complete and coherent legal system with his reluctance to admit that
legal and moral argumentation are intertwined.
7 Proportionality in Lawmaking 142

Whereas the legislator, in a pluralistic society, must strive for materialising the interests and
ideology of the majority—of course, within certain limits, such as not oppressing minorities or
not harming future generations severely—, judges’ priority is to ensure impartiality, i.e. they
must guarantee that both the law and fundamental rights are respected in particular cases. And
these different commitments lead in turn to different styles of reasoning.

7.3.2.3 The Objects, Forms, and Places of Both Judicial and Legislative Legal Reasoning

Judges argue about written law (object), through written documents (form), and in a court of
justice (place). By contrast, legislative reasoning is related to social reality and takes different
forms, being conducted in oral, written, public, private, parliamentary and extra-parliamentary
ways. Furthermore, legislative debates take place in quite diverse contexts. They are not
confined to parliamentary buildings, committee or plenary rooms, but also extend to television
studios, social networks, and even private places. For these reasons, when it comes to
understanding the potential of the principle of proportionality for law-making reasoning, it is
advisable to distinguish three phases within the legislative process: the pre-legislative, the
legislative and the post-legislative. Depending on the legislative phase upon focus, the object,
form and place of legislative reasoning will more or less differ from judicial reasoning. The
distinction between three legislative phases opens a path to better grasp the various practices
of lawmaking, and to outline different models for each of them, but in this chapter I will not
go into this point any further. Let me just finish by pointing out that, as regards the pre-
legislative phase, one priority in the study of legislative reasoning should be to address those
activities that, while developed outside the institutional channels, do actually determine
legislation. For this, as Díez-Ripollés suggests,28 one can look at two significant aspects in
each of the five stages he identifies within the pre-legislative phase: the social actors who take
the lead, and the varying degree of institutionalisation of the activities carried out in them.
Leaning on these two “keys”, an applied theory of legislative reasoning should attempt to
distinguish between legitimate political objectives and spurious political interests. It should
investigate whether and to what extent political parties’ electoral interests, lobbyists’ particular
interests, global economic tendencies, other countries’ pressures, etc. have affected rational
legislative reasoning. Should some of these inputs enter legislative reasoning, it would then be
necessary to explore how (pre)legislative stages of the lawmaking process can be further
democratised. In other terms, legislative reasoning should make sure that citizens are allowed
to see who the real legislative actors are, which interests they represent, which arguments they
support and so forth, so that this part of the process of legislation is also transparent: a public
context of dialog, and not an opaque bargain in private.

7.4 Conclusion

This paper has tried to show that the principle of proportionality, in the way it works in the
field of jurisdiction, offers a valid starting-point for reasoning in law-making processes.
There is no doubt that both Constitutionalism and Post-positivism boost a culture of
justification in adjudication. Constitutionalism justifies the need for law’s reasonableness by
emphasising the hierarchical supremacy of constitutional principles. Post-positivism holds that
the Law raises a claim to correctness, and conceives fundamental rights and other primary

28
See Díez-Ripollés’ contribution to this book (Chap. 3).
G. Marcilla 143

values of the community as intrinsically tied to a practical reasoning which is based on the
weighing of these rights and values under given legal and factual circumstances. Legislatures
are as interwoven with this culture of justification as the judiciary is, or even more (Sect. 7.1).
A proof of this shared philosophy of justification is that the legislator, trying to avoid a negative
assessment for the validity of a law, develops a task of preliminary justification which follows
justificatory criteria similar to the ones used by the Constitutional or the Supreme Court when
reviewing for constitutionality. This justification is reflected in preambles preceding statutes.
Nonetheless, the more the legislative process is carried out outside the institutional framework,
the less explicit are the reasons for lawmaking. True preferences, interests and reasons stay
hidden.The differences between the way in which courts and parliaments work as institutions
must have great importance in the design of a model of argumentation. However, these
differences should not prevent us from extending a fruitful principle such as the principle of
proportionality from the jurisdiction to the province of legislation. This extension should not
be limited to the phases of legislative reasoning which are endowed with greater
institutionalization, i.e. government bills, parliamentary debate minutes or enacted rules.
Proportionality should also play a role in informal law-making activities, which in practice
may be even more crucial than the formalised ones.
Before approaching the principle of proportionality as a useful tool for legislative
reasoning—as it is for judicial reasoning—, it seems convenient to present a series of
arguments that justify why legal sciences should not only address problems of interpretation
and application of law, i.e., issues related to the jurisdiction (Sect. 7.2). These arguments could
be grouped into four misconceptions regarding legal studies. The first one is that legal science
unduly marginalises the study of the quality of laws without a sound basis. The explanation of
this misconception can be traced back to the birth of modern legal science. Only the exegesis
of codes and the distillation of legal concepts deserved the dignity of scientific study. This
jurisdiction-oriented legal science was reproduced in the programs of most schools of law.
However, the neglect of legislation became a misconception when legal formalism started
declining (Sect. 7.2.1). Whereas a first misconception on legislation was to marginalise
legislative drafting or lawmaking in contrast with adjudication, a second misconception is to
claim that legal science has not reflected “at all” on the task of legislation. The interest in
lawmaking is demonstrated in numerous studies on the law’s crisis phenomenon (Sect. 7.2.2).
The third misconception is to pay attention just to the formal aspects of legislative rationality.
This biased approach derives from a positivist concept of Law, which has been characterised
here as a concept that entails scepticism toward levels of rationality that go beyond the logical
analysis of language. Cutting down the semantic indeterminacy of legal norms and improving
their systematicity are significant challenges, for the lack of clarity and systematicity
significantly affect the role of jurisdiction. But other perspectives on the quality of lawmaking
are likewise crucial, which has led “legisprudence” studies to address the shortcomings of
legislation as an instrument for social engineering, as well as the problems related to the
legitimacy of laws, i.e., to their axiological rationality, a subject that legal positivism excludes
from legal knowledge and places in the domain of ethics—this exclusion derives from the
sceptical approaches to metaethics that underlie current legal positivism. However, from the
point of view of non-sceptical metaethics, which pervades non-positivist legal philosophy, the
legitimacy of legislation is a matter of reasonableness criteria (Sect. 7.2.3). Finally, the study
of lawmaking should face a fourth misconception, linked to an utterly realistic vision of
legislation. From this angle, legislation identifies with power, and does not respond to
rationality at all. This vision of legislation only points at the darkest side of politics and thus
excludes the creation of laws as a scientific goal. However, the ideal of ethics governing
7 Proportionality in Lawmaking 144

politics supports a legal science-oriented towards the legitimacy of lawmaking processes,

regardless of spurious interests that could hide behind real politics (Sect. 7.2.4).
After showing that it makes sense to pursue reasonableness in legislation, this chapter has
explored whether, when it comes to legislative decision-making, the weighing of fundamental
rights and values of the legal system is an appropriate starting point to improve legislative
quality. To this end, I have examined the adequacy of Robert Alexy’s formulation of the
principle of proportionality. Even though this author concentrates on the field of jurisdiction,
it is necessary to explore the performance of his weighing formula in the adoption of legislative
decisions.
One of the reasons to defend the hypothesis that Alexy’s weighing formula will work well
is that it is based on a utilitarian or consequentialist ethic. Something similar happens with the
vision of the weighting of fundamental rights held by Sieckmann. None of them proclaim to
rely on consequentialist ethics as a basis for their theories of fundamental rights. However,
they do not unconditionally support deontologist ethics either. That is, Alexy and Sieckmann
agree on the need of balancing fundamental rights by minimising the weight of utilitarian
reasons. However, even when they try not to incur utilitarianism, they end up doing it. Precisely
because of this utilitarian-based perspective of balancing, their theories on the principle of
proportionality seem to be especially useful to deal with law-making reasoning. When it comes
to ruling out a severe damage to a fundamental right, law-making reasoning has to consider
the general interest, that is to say, the global positive effects of a policy. The violation of a
fundamental right as a consequence of the application of the law in a concrete case is a problem
for the courts to solve. In short, the preeminence of utilitarian considerations is questionable
on the jurisdictional level, but not on the legislative one (Sect. 7.3.1). Finally, although
proportionality might be the basis of both adjudicative and legislative reasoning (as two forms
of legal reasoning), the singularities of these institutions must not be overlooked—recall e.g.
the partiality of parliamentary representatives as contrasted with the required impartiality of
judges, or the wide range of options available in legislative decision making as compared with
the legally limited decisional margins in adjudication. The present contribution has attempted
to highlight some of these singularities as a first step to take advantage of the principle of
proportionality in order to promote better legislative decision making (Sect. 7.3.2).

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Europa Reconstruir tras 60 años de los Tratados de Roma?, ed. J.R. Bengoetxea, 57–72. Dykinson:
Madrid.
van Klink, B. 2018. Legislation, Communication, and Authority. How to Account for the Bindingness
of Law? (in this volume).
Weber, M. 1919. Politiks als Beruf. München und Leipzig: Dunker & Humblot.
7 Proportionality in Lawmaking 146

Wintgens, L. 2012. Legisprudence. Practical Reason in Legislation. Aldershot: Ashgate.

Wroblewski, J. 1987. Law-making and hierarchies of values. Leipzig: Duncker & Humblot.
Zapatero, V. 1994. De la jurisprudencia a la legislación. Doxa. Cuadernos de Filosofía del Derecho
15/16: 769–789.
Stelmach, J. and B. Brozek. 2006. Methods of legal reasoning. Dordrecht: Springer.
Chapter 8
Legislation and Argumentation: Towards a Model for the
Analysis of Legislative Reasoning

Manuel Atienza

Abstract In some articles and books I have suggested a twofold approach to the analysis of legislative
argumentation—as carried out within parliaments—which combines two perspectives. On the one hand,
in an attempt to reconstruct the process of legislative argumentation, I have 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, this approach entails
an empirical study of pieces or fragments of legislative argumentation—i.e. of the argumentation by an
MP in relation to one of the issues discussed in parliamentary debates. Drawing on this previous work,
my objective now is to further develop my account of legislative argumentation in the light of two recent
(series of) legislative debates held in the Spanish Parliament. One is about the reform of the regulation
of underage girl’s access to abortion (2015), and the other is about the controversial Citizen Security Act
(2015). Upon examining these two “legislative cases”, I will discuss the implications of the analysis and
evaluation of legislative argumentation in parliament, drawing several conclusions that may hopefully
stimulate further research—both theoretical and applied—on this topic. In this connection, I think that
by delving into the study of parliamentary reasoning about legislation (as a special variant of argument
in law) we may well find strong support for a more complex and less “unifying” conception of legal
reasoning than the one underlying the “standard”, judicial-oriented theories of legal argumentation.
Keywords Legislative reasoning • Parliamentary debate • Legal argumentation • Argumentation
analysis • Fallacies

1 Introduction

In several essays published since the late 1980s I suggested a model for legislative analysis that
can be summarized in the two figures presented below. 1 The first one (Fig. 8.1) shows how the
process of production of laws can be understood as a series of interactions taking place between
various elements: (i) the lawmakers or norm “issuers”; (ii) the norm recipients or “addressees”;
(iii) the “legal system” as a whole to which new pieces of legislation are added; (iv) the “ends”
or aims—taken in the widest sense—that may be pursued by legislation; and the (v) “values”

M. Atienza ()
Universidad de Alicante, Facultad de Derecho
Campus de San Vicente del Raspeig, E-03690 Alicante (Spain)
e-mail: [email protected]

1
Most of these essays are collected in Atienza (1997); see also Atienza (1992).
8 Legislation and Argumentation 148

underlying such ends. Besides this, I distinguished five layers or levels within the notion of
legislative rationality: (R1) the linguistic, (R2) the systematic, (R3) the pragmatic, (R4) the
teleological, and (R5) the axiological. Combining these five rationality levels with the elements
interacting in the production of laws, one obtains the following scheme:

Lawmakers Addressees Legal system Aims Values

R1 Transmitter Recipients of Set of statements Clarity, precision Communication

the (legal) (messages) and
message channels to
transmit them

R2 Organ endowed Individuals Set of norms (in Systematicity: Security and

with the power and organs to a broad sense) fullness and predictability
to produce whom the validly coherence
legislated law laws are established
directed
R3 Organ to which Bureaucracy; Set of effective Compliance with Maintenance of
obedience is individuals rules (or of the law (translation order,
owed who owe observable of norms into effectiveness
(sovereign) obedience behaviors) actions)
(subjects)
R4 Bearers of People Set of means to Achievement of Social
social interests affected by attain social ends social aims: effectiveness or
(individuals, the regulation (with the redistribution of efficiency
pressure groups, on social selection of wealth, increase or
etc.) interests or means being decrease of social
needs informed by protections,
psychology, reduction of
sociology, unemployment,
economics, etc.) maintenance of
political or
economic
advantages, etc.
R5 Legitimate People Set of ethically Liberty, equality Nature, human
authority morally bound evaluable norms, and justice dignity,
to obey the actions, and consensus, etc.
law institutions

Fig. 8.1 Legislative rationality and elements of the lawmaking process

The second figure (Fig 8.2) depicts a framework for an external, dynamic-type analysis of
the legislative process—an analysis that shows how the aforementioned notions of rationality
combine along this process.2 Here, a distinction is made between the pre-legislative, legislative
and post-legislative phases. As indicated in the diagram, each of these phases can be seen as a

2
On the distinction between the “internal” and “external” analysis of legislative rationality, see Atienza
(1992: 281–82; 1997: 53 ff.).
M. Atienza 149

sub-process delimited by an initial (“beginning”) and a final (“end”) activity or task, with the
progression from one to the other represented through a set of “intermediate operations”.

Fig. 8.2 Dynamic model of rational lawmaking

In subsequent years I got interested in connecting this conception of legislation with legal
argumentation, i.e. in linking the theory of legislation and the theory of legal argumentation. A
little more than a decade ago (see e.g. Atienza 2005), I proposed a model to analyze legislative
argumentation—as carried out within parliaments—which allowed for a twofold perspective
of enquiry. On the one hand, the model attempted to capture the process of argumentation by
means of a 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, portions or fragments of legislative argumentation—as advanced
by a participant (an MP) in relation to some of the issues raised during the debates—were
selected for in-depth analysis, thus gaining insight into the complex activity of arguing about
legislation. My objective now is to try to develop this model a bit further upon the analysis of
two “legislative cases” taken from the recent experience of the Spanish Parliament: one is about
the regulation on the access of underage girls to abortion (Sect. 8.2); the other concerns some
measures included in the Citizen Security Act of 2015 (Sect. 8.3). Particularly, I pursue to test
8 Legislation and Argumentation 150

if an “empirical” study of parliamentary debates makes it possible to draw some conclusions

which are relevant to both the theory of legislation and the theory of legal argumentation.

2 Argumentation on Underage Girls’ Access to Abortion

The first case of legislative argumentation that I will examine are the debates about the Organic
Law 11/2015 to strengthen the protection of underage girls and women with judicially modified
capacity in the voluntary interruption of pregnancy. One of the reasons for choosing this law
is that its parliamentary discussion has already been the object of a detailed analysis by Daniel
Oliver-Lalana (2017; cf. also 2014), and this makes it possible to do some kind of comparison
between two methods of analysis and evaluation of legislative argumentation. I hasten to clarify
that the method I am going to suggest only differs from that of Oliver-Lalana in that it pretends
to be simpler than his, much simpler—which may not lack relevance. Another reason is that
this law is a very special one, not only because it includes only two articles, but also because
of the bipolarization of the six debates preceding its enactment—a circumstance that simplifies
things a lot. Throughout the intensive parliamentary discussion of the bill there were actually
only two sides: on the one hand, the parliamentarians of the conservative Popular Party,
defenders of the bill upon focus; on the other, the rest of the parliamentarians, who—even
though their respective political parties had different ideological stances—were all against the
approval of the bill, and advanced similar and even essentially coincidental arguments. 3 For
the purpose of this paper, I will limit the analysis to the discussions that took place in the Senate
Plenary on 9 September 2015. 4 Yet, I think that a complete examination of the five debates
previously held in the Congress and in the Senate Committee would yield fairly similar results,
and would not add nothing new—at least, nothing particularly significant.
The Organic Law 11/2015 drastically modified the regulation of underage girls’ access to
abortion established some years earlier by the Organic Law 2/2010 on sexual and reproductive
health and voluntary termination of pregnancy, so-called “Abortion Act”—which was passed
by Parliament under the government of the Socialist Party. Article 13.4 of this Act read:

Art. 13.4. In case of a woman aged 16 or 17, the consent to undergo a voluntary
termination of pregnancy is exclusively incumbent on her, pursuant to the general rules
applicable to adult women. At least one of the legal representatives, father or mother,
persons holding parental authority or guardians of that women shall be notified of her
decision. This notification shall be waived if the minor alleges, on well-founded reasons,
that it will cause her a serious conflict entailing an actual risk of intra-familiar violence,
threats, coercion, maltreatment, or a risk of getting otherwise uprooted or neglected.

Shortly after the passage of the Abortion Act, the Popular Parliamentary Party lodged an
appeal of unconstitutionality against it, asking the Constitutional Court to invalidate Article
13.4—among many other provisions. Thereupon, in its political program for the 2011 elections,
the Popular Party included the promise to set a radically different regulation on abortion. This

3
I think the only exception to this are some manifestations by some representative of the Basque
Nationalist Party and Convergence and Unió that, in any case, do not contribute anything from the
argumentative point of view, that is, they do not introduce new arguments in the debate. And in relation
to the coincidences, there are obviously some differences in accent (and rhetoric), but I would say that
all those who opposed the approval of the law would agree with the argumentative synthesis that I will
now present.
4
Senate’s Journal of Debates (Diario de Sesiones), X Session, no. 171, 9 September 2015, p. 16942 ff.
M. Atienza 151

party won the 2011 elections—achieving absolute majority in both Congress and Senate—,
and the resulting conservative government commissioned the Minister of Justice (A. Ruiz
Gallardón) to prepare a new bill on abortion. Among other controversial points, this bill was
intended to abolish the “model of terms” established in the 2010 Act, which had made abortion
freely available on demand within the first 14 weeks of pregnancy. But the Minister did not
succeed: he was forced to withdraw the legislative project—and, as a consequence, to resign—
because of the public opinion’s strong opposition to it. In February 2015, nonetheless, the
parliamentary party supporting the government submitted a so-called legislative proposal
(a private members’ bill) to Congress—yet with a much narrower scope. It is this proposal
that matters here. It had only the following two articles:

First Article. Modification of the Organic Law 2/2010 on sexual and reproductive health
and the voluntary interruption of pregnancy.

The fourth section of Article 13, without content, is deleted. 5

Second Article. Modification of the Basic Law 41/2002 regulating patient autonomy and
the rights and obligations related to clinical information and documentation.

Section 5 of Article 9 is modified, 6 and worded as follows:

5. The practice of clinical trials and the use of assisted reproductive technology are
governed by the general provisions on the age of majority, and by the special provisions
which may be applicable.
The voluntary interruption of the pregnancy of minors, or of persons whose legal capacity
has been judicially modified, shall require, in addition to their declaration of will, the
explicit consent of their legal representatives. Conflicts related to consent-giving by legal
representatives shall be solved according to the Civil Code.”

The five-level model of legislative rationality I have sketched above (Sect. 8.1) perfectly
serves—I think—to give an account of the argumentation of the MPs who opposed the approval
of this bill. The arguments advanced by the parliamentarians, that is, can be classified without
much effort into one of the five categories of reasons encompassed by this model: linguistic,
systematic, pragmatic, teleological, and axiological. During the debates, the latter two kinds of
reasons were far more important than the others. Putting now to one side the interconnection
between different kinds of reasons—as we will see, they are not entirely independent from each
other—, the argumentation against the law upon discussion could be synthetized as follows.
A) The law does not satisfy the requirements of linguistic rationality.

5
See the repealed Section 4 of Article 13 on the previous page. The reform did not affect Sections 1 to
3 of this Article, which read: “Necessary requirements for a voluntary interruption of pregnancy are: (1)
that it be practiced by a specialized doctor or under her direction; (2) that it be carried out in an authorized
public or private health center; (3) that it be carried upon the explicit and written consent of the pregnant
woman or, eventually, of her legal representative in accordance with the provisions of the Basic Law
41/2002, regulating patient autonomy and the rights and obligations related to clinical information and
documentation [Patient Autonomy Act]. Explicit consent may be dispensed with in the case provided
for in Article 9.2.b) of this Act”.
6
Previously, this section stated: “Consent-giving by representation shall be appropriate to the
circumstances and proportionate to the needs that must be met, always in favor of the patient and with
due respect for her personal dignity. Inasmuch as it is possible, the patient shall participate in any
decision taken throughout the entire duration of the health treatment”.
8 Legislation and Argumentation 152

According to the law’s preamble, the purpose of the reform is to make sure that, when it
comes to undergoing an abortion, underage girls “are accompanied” by their parents or legal
representatives, since this situation is of vital significance. In this regard, the preamble claims
that the rules on minors’ consent introduced in 2010, which modified in turn the regulation of
the 2002 Patient Autonomy Act, had opened up “the possibility for minors to give their consent
on their own, without even informing their parents” (emphasis added). But, actually, the 2010
Act did require parental notice, allowing to waive it only in very exceptional, extreme cases
where there is an actual risk of intra-familiar violence, coercion, or a risk that the minor gets
uprooted or neglected as a consequence of informing her parents. Thus, the message that the
new law conveys is false or, at least, misleading.
B) The law does not satisfy the requirements of systematic rationality for two reasons:
1) Procedural. The process followed to introduce the law was irregular (even fraudulent),
for it was the Popular Parliamentary Party which directly submitted the legislative proposal (as
a private members’ bill) to Congress, thereby avoiding the procedural requirements which are
set on the elaboration of government bills, such as the request of the opinions of the Council
of State and other consulting bodies—one may plausibly presume that these opinions would
have been unfavorable.
2) Substantive. The regulation is contradictory, since the women aged 16 and 17, while not
being allowed to decide on the interruption of an unwanted pregnancy, are nevertheless deemed
mature enough to take responsibility for a child. Similarly, the new regulation contradicts other
parts of the Spanish legal system, such as the civil law provisions that allow minors aged 16 or
17 to marry, or the penal law provisions establishing that they are criminally responsible (i.e.
they can commit crimes and be punished for it). In addition, the bill inappropriately equates
underage women with women whose legal capacity has been judicially altered.
C) The law does not satisfy the requirements of pragmatic rationality. The second article of
the law does not establish any specific procedure to resolve conflicts that may arise between
underage women and their legal representatives—think e.g. those extreme cases in which the
previous regulation did not require parental notice. Therefore, if such conflicts arise, the minor
will necessarily have to bring the case before a civil court. But civil jurisdiction procedures are
quite slow and hence ineffective for this problem: if the 14-weeks term during which abortion
is freely available on request is exceeded, the minor could not interrupt her pregnancy.
D) The law does not satisfy the requirements of teleological rationality for several reasons:
1) In general terms, the previous regulation have had positive effects. Since it was passed,
both the number of abortions and the number of unwanted pregnancies decreased, as evidenced
by several statistical studies. In addition, during the year 2014 only 3.6% of the abortions were
undergone by minors above 16, whereby parents or legal representatives were informed in 87%
of the cases. In other words, only 0.4 % of the total number of pregnancy interruptions were
not reported because of a situation of violence, uprooting or abandonment.
2) The effect that the law is most likely to provoke is the under protection of underage
women who are in a situation of extreme vulnerability (poor women, immigrants, difficult
family environments, etc.). The new regulation will lead many of these women to resort to
clandestine abortions clinics, putting their life and health at risk.
3) The true purpose of the new law is not to protect underage women, but to improve the
Popular Party’s electoral prospects; more concretely, the new law attempts to please the radical
sector of this party with an eye on the next elections (which were held at the end of 2015).
E) The law does not satisfy the requirements of axiological rationality; again, for various
reasons:
M. Atienza 153

1) There is no popular demand—nor any social need—for this law. The Popular Party has
not sought to arrive at any political consensus. The law was unnecessary.
2) The law restricts women rights, particularly the rights to life, to health, to personal
autonomy and to non-discrimination, disregarding the recommendations of many international
organizations (such as the United Nations Human Rights Committee, the Committee on the
Elimination of Discrimination against Women, the United Nations Committee on the Rights of
the Child and the World Health Organization).
3) The law responds to ideological (religious) considerations, and does not pursue the
general interest.
All this argumentation against the adoption of the bill could be represented by means of an
arrow diagram (Fig. 8.3). 7

Fig. 8.3 Argumentation against the passage of the 2015 Act (I)

Leaning on this reconstruction, one could take some of the arguments represented in the
above figure and analyze them in greater detail. Let us choose, for example, the argument “D2”,
a consequentialist argument that played an important role during parliamentary discussions.
Taking advantage of Oliver-Lalana’s (2017: 23 ff.) survey of these debates, I think that the
argument—somewhat freely interpreted—could be phrased as follows:

1. If the reform of this law is going to cause undesirable consequences, then the
reform should not be approved.
2. The reform of this law will have the following consequences:
2.1. An increase in clandestine and unsafe abortions,
2.2. Forced decisions and parental pressure on underage women.
2.3. Unwanted continuations of pregnancy
2.3.1. since there are no viable procedures to solve consent-related
conflicts.

7
See Atienza (2013: 423 ff.).
8 Legislation and Argumentation 154

3. The above consequences are undesirable:

3.1. Because 2.1 violates the right to life and health, the duty to protect
minors and the right to non-discrimination (for socio-economic
reasons).
3.2. Because 2.2 violates the principle of autonomy and non-discrimination.
3.3. Because 2.3 violates the principle of autonomy.
4. Therefore, the bill should not be approved.

Fig. 8.4 Argument from negative consequences

Note that “2.3.1” (Fig. 8.4) is precisely the argument “C” in the general diagram (Fig. 8.3),
and that “3.1”, “3.2” and “3.3” likewise correspond to argument “E2” in that diagram—which
also includes the same conclusion as the consequentialist argument (“4”). Accordingly, we can
now reshape the general diagram like this:

Fig. 8.5 Argumentation against the passage of the 2015 Act (II)

This argumentative analysis—which might be refined as much as needed—also offers a

useful framework for the evaluation of a legislative argument, though not in all its dimensions.
I mean that a comprehensive approach to legal argumentation (and to argumentation writ large)
M. Atienza 155

must allow for a formal, a material, and a pragmatic perspective (with the latter having both a
dialectical and a rhetorical dimension) 8, and the above diagram does not cover all three aspects.
It makes it possible to check whether the argument is formally well structured or not, and may
also facilitate the evaluation of the substantial correctness of the premises, for one can examine
whether each of them is materially justified in the light of the role it plays within the entire
legislative argumentation. Yet, the evaluation of debates from a dialectical perspective requires
considering both argumentation by the one party and counter-argumentation by the other; how
the debate has developed through its various phases or stages; and whether the rules underlying
a parliamentary dialogue have been fulfilled—such rules are not the same as the ones governing
a Habermasian-Alexyan rational dialogue.9 As regards the rhetorical dimension, the evaluation
of legislative arguments can be quite complex because of the characteristics of the relevant
audience. In other words, the main addressee of the parliamentary debate does not seem to be,
in principle, the public opinion, which will rarely follow the discussions in committee and
plenary sittings. An MP participating in legislative debates addresses her speeches to her fellow
MPs, and these—in view of the usual functioning of legislative bodies—are simply not willing
to be persuaded by arguments other than those advanced by members of their own political
group or party coalition. So the audience operates here, rather as a sort of claque. And this
somehow implies that parliamentary discussions must be considered, in this important respect,
as belonging to the epideictic of rhetoric, and not to the deliberative genre (Aristotle 2009).
This characteristic, that is, this shift towards the kind of rhetoric that does not properly seek
to persuade (since the discourse is basically addressed to those who are persuaded beforehand)
is visibly reflected in the case that concerns us. The result of the voting in the Spanish Senate
was clearly favorable to the adoption of the bill (145 out of 239 votes cast; with 89 votes against
and 5 abstentions), but there are many reasons to believe that this result had little or nothing to
do with the parliamentary debate itself. Rather, what such a result reveals is the composition
of the Senate at that time, with the Popular Party having a broad majority of seats (135).
Therefore, it does not make much sense to ask which of the two competing discourses (the one
by the supporters of the new law or the one by its adversaries) was more persuasive, for the
result was easily predictable for anyone before discussion. This does not mean that a rhetorical
analysis of these discourses lacks interest but that the MPs attitude is not linked to what we
might call “rational persuasion”. 10
Therefore, if we want to evaluate the quality of legislative debates from, say, an “impartial”
perspective, then we must pay attention to the structure of the arguments, to the dialectical side
of the argumentation, and, above all, to its material dimension—i.e. to the quality of the reasons
MPs give during the debates. And, to my mind, if such a test is applied to our case we surely
yield a result that is exactly the opposite of the result of the voting in the Senate. Not only were
the Popular Party’s arguments weaker than the arguments against the bill (Fig. 8.3 and Fig.
8.5). In my opinion, what the parliamentarians of the Popular Party put forward—at least during
the plenary debate I am commenting on—were not properly arguments, but mere fallacies. The
most frequent were the fallacy of “evading the question” (which includes the omission of reply,
i.e. not answering an argument when there is a dialectical obligation to do so); the appeal to
emotions, and the arguing ad hominem. Let me give some examples by taking several passages
from the speeches of the Popular Party’s senators on the floor and briefly indicating why they
are fallacies. I do not think I have taken them out of context—at least this has not been my
intention. Anyway, I refer to the corresponding pages in the Senate’s Journal of Debates, where

8
Atienza (2013).
9
I will return to this point later.
10
I put to one side how things would be if the relevant audience were the public opinion (or part of it).
8 Legislation and Argumentation 156

the entire speeches can be consulted. I have also numbered the selected passages for the sake
of clarity.
In her first speech (p. 16956–16957), Senator Pan Vázquez said:

1. “Ladies and gentlemen, I come up to this stand … to defend the right and the opinion
of a broad social majority that does not think like you, and that is why they have not voted
for you”.

The fact that a majority of citizens has not voted for the parties which are against the bill is
taken to mean, in general terms, that a majority of citizens does not think like the senators of
these parties. However, the public opinion could largely agree with them on a particular point.
What holds true for the whole does not necessarily hold true for each of its parts.

2. “It is about (…) the protection of the minor[s]; it is about the transcendence of the
decision that they have to take, as well as of the essential core of the legal institutions
which are regulated in Article 154 of the Civil Code”.

But it was not about that. No one had questioned the transcendence of the decision, nor the
need to protect the minors. What was being discussed was something else: who should make
the decision and in what way the interests of underage women would be better protected.

3. “Ladies and gentlemen, this proposal introduces two very specific legislative changes
(…) in order to protect underage women (…). This reform is neither contrary to nor
contradictory with the legislation in force”.

But in this contribution no reason at all is given to demonstrate that the law will protect
underage women, or that the modification is neither contrary to nor contradictory with current
legislation.

4. “Ladies and gentlemen, rights are not being taken away here. You cannot take away
what does not exist and has never existed (…). You contradict yourselves in your
argument. There are groups in this House that want to go even further, and have submitted
amendments to modify the current legislation to a greater extent”.

What she is saying is that, according to the legislation in force at that time, underage women
who find themselves in a situation of violence, uprooting or abandonment—as established in
the article that the Popular Party wanted to abolish—could decide to interrupt their pregnancy
without any need to inform their legal representatives. Therefore, they actually “had the right”
to do so, in the sense that they “could do it”, for the law entitled them to make that decision.
This is a usual way of speaking about “having rights”. So, in a perfectly understandable sense
of the expression, a right was indeed being removed or “taken away”: a certain type of action
was no longer allowed. Moreover, the accusation of contradiction she levels at the opposition
parties is unwarranted: although these parties disagree on some other points, they all agreed on
not changing this particular aspect of the law. And the bill exclusively affected to this very
aspect, on which there was a consensus among the opposition parties.
In her second speech, Senator Pan Vázquez (p. 16965–16967) stated:

1. “Ladies and gentlemen, I come up to this stand to protect minors and not to respond
to insults; to protect minors when they have to face a decision of such a transcendence as
an abortion; and to give parents back the capacity to advise and assist their daughters in
such an important moment in their lives… Therefore, there is no room for interpretations
M. Atienza 157

beyond [sic] the defense and protection of minors, and [beyond the need] that their parents
or guardians are informed and can advise and, if necessary, accompany them in such a
dramatic and exceptional situation.”

But the law had not deprived “parents” (standing for both parents and legal representatives)
of the opportunity or “capacity” to advise and assist their daughters—so there was nothing to
give them back. What the 2010 regulation actually envisaged was to protect underage women
from those parents (a very small number of them) who are not willing to “advise and assist
their daughters” in difficult situations. For the rest, Senator Pan Vázquez did have reasons to
complain about other senators’ insults to the Popular Party. As an example of such insults—
obviously, another type of fallacious argument—, we can take the following statement by Mr.
Mulet García (Senator from the Valencian Community, speaker of the left-winged party
Compromís): “You suffer from a disease of political lycanthropy. You want to sell yourselves
as a contemporary, modern, and liberal party, but when the full moon rises, you turn into the
beast you have inside, and the most outdated national-Catholicism appears. You, gentlemen of
the Popular Party, weep the worst fundamentalism through the pores and cannot avoid being
seen as what you really and ideologically are: pure reaction and dandruff” (p. 16957).

2. “There is not a unique thought in society, only that of some groups that want to impose
their criteria and to shut us up when we express another way of thinking… That is why I
dare to say in this stand that we do not only defend the opinion of the Popular
Parliamentary Group, but of all those people that perceive themselves as socialists,
nationalists, left-wing, or any other creed or ideology but who truly believe that an
underage women has to be more protected when dealing with an issue of this importance,
and that her family, specifically her parents, are the ones who give her the best advice.”

It might well be the case that persons adhering to different ideologies (socialist, nationalist,
etc.) agreed with the senator of the Popular Party on this point, but then they would also incur
the same fallacy as her: as mentioned before, the law did not imply any lack of protection for
underage women nor did it hamper parental involvement by any means. And, obviously
enough, the freedom of expression of the parliamentarians of the Popular Party—like that of
any other senators willing to express their opinion on this matter—was never in question.

3. “Spanish families are always there… Ladies and gentlemen, you have deprived them
of participating in such an important issue as facing an eventual decision to abort or not
to abort”.

Here we find the same fallacy of “deviation from the question” or “false description of a
reality” committed in passages 1 and 2. But now it could receive another name: the fallacy of
“repetition of a fallacious argument”; as is known, a repeated falsehood can often end up
appearing to be true.

4. “The best school for a minor is the family and, therefore, we believe it is necessary to
support it”.

In the debate, no one questioned the importance of family, or the need to support families
and underage women.

5. “Ladies and gentlemen, it is also necessary to adopt measures in order to address the
decreasing birth rate and the aging of the population, as well as to provide essential
support for motherhood, and to give recognition to those women who decide to have
children”.
8 Legislation and Argumentation 158

It seems obvious that these policies have nothing to do with the content of the proposed law
that was being debated.

6. “Fortunately, ladies and gentlemen, exceptional and minority situations such as cases
of violence… are already provided for and protected in our legal system… You intend to
make the exception a general rule, and from our point of view that is a mistake”.

But the argument advanced by the critics of the bill (C1) was that the general civil procedure
available for such cases was not going to be effective due to its slowness. Besides this, as noted
earlier, virtually all parliamentarians in the opposition had insisted on the very exceptional
nature of these situations of violence, uprooting or lack of protection.

7. “As you can see, we are worried about the minors, we are worried about the violence…
It is not true that minors are forced to illegal abortions, it is not true. Spain is under the
Rule of Law, and clandestine [medical] centers are persecuted, inspected and closed. I do
not know any of such centers, but if you know one in your community you have the duty
to report and denounce it. Do not come here to say that we are leading minors to illegal
abortions”.

The alleged effect—i.e. that, in the future, the number of clandestine abortions and hence
the risk to women’s life and health will increase as a consequence of the reform—would result,
in Mertonian terms, from a “latent” function of the law (not from a “manifest” function). That
is, these are not “declared” or intended but foreseeable effects, and cannot be avoided by merely
appealing to the Rule of Law. And, inasmuch as the argument advanced by the critics of the
bill is a prognostic one (i.e. it refers to future events) it is also obvious that whether these critics,
at the present moment, know or do not know about clandestine abortion clinics is irrelevant.

8. “Abortion is not a right… I repeat, ladies and gentlemen: you did not have any
commitment to your constituencies when you introduced the current law [of 2010], and
there was no such a consensus nor such a majoritarian support as you say there was. I
insist: 184 votes in favor and 158 votes against”.

On whether or not abortion is a right, I refer to my comments on the passage 4 of the first
speech of this Senator. Now let me just point out that, although it was true that there was no
consensus on this issue in 2010, it is likewise true that the 2010 law had somehow contributed
to settle the question and generate a broad social consensus on it. A clear proof of this change
can be found in the opinion polls that were invoked by many of the parliamentarians in the
opposition—but ignored by Popular Party’s Senator Pan. And yet another evidence could be
what happened to Minister of Justice Ruiz Gallardón, who even failed in getting his draft bill
on abortion approved by the government cabinet: he was forced to resign because the law he
had envisaged turned the public opinion— surely including many Popular Party’s voters—
against a wholesale reform of the Abortion Act.
The analysis could be extended, with the same or very similar results, to the two speeches
delivered by the other senator of the Popular Party who participated in the debate, Mrs. de
Aragón Munárriz (Journal of Debates, pp. 16972–16974 and 16979–16981), but I think it is
not worth doing it. Regarding the evaluation of the quality of the arguments for and against the
proposed law, anyone approaching these debates with an attitude of minimal impartiality would
arrive, in my opinion, at the same conclusion. By this I am not saying that the argumentation
represented in the diagram cannot be refuted at all, nor that valid reasons—of a greater or lesser
weight—cannot be advanced in relation to those arguments. What I say is that, in fact, this was
not the case: in the Senate’s plenary debate there is no single reason to be found that weakens
M. Atienza 159

that argumentation. But then, after all, this may have not been a good example to discuss about
the evaluation of legislative argumentation. Let us try with another.

3 Argumentation on the Citizen Security Act

The case of the Organic Law 4/2015 on the protection of citizen security (short: Citizen
Security Act) shows some similarities and some differences with the previous one. Both laws
were discussed and approved by the Spanish Parliament approximately on the same dates, and
hence under the same correlation of political forces. The Citizen Security Act also modified
(more exactly, replaced) the regulation established some years earlier, when the socialist party
was in government (the Organic Law 1/1992 on the protection of citizen security). The bill
submitted by the Popular Party’s government was strongly contested in the Congress, where
no less than nine “total refusal” motions were presented by the opposition parties. 11 In
contrast to the reform of the Abortion Act, however, the Citizen Security Act is a quite large
piece of legislation (besides a fairly extensive preamble, it includes 55 articles, 7 additional
provisions, 1 transitional provision, 1 repeal, and 5 final provisions). And it was processed, one
might say, in a more paused and open way than the reform of the Abortion Act, in the sense
that the topics of discussion were diverse, and the Popular Parliamentary Party, having a
sufficient majority to get the bill passed, nevertheless accepted a number of amendments to the
original text submitted by the government—for the most part, these amendments were about
aspects that one might consider regulatory details, such as reducing the extent of sanctions,
distributing powers or competences between different police corps, etc.
On the whole, the debates during the “legislative phase” of this lawmaking process—held
in committee and plenum, both in the Congress and the Senate—were considerably extensive
and, in many respects, repetitive. There are certainly slight differences between the arguments
advanced against the bill by the various opposition groups, but I think that the five-level model
of legislative rationality introduced at the outset (Sect. 8.1) may well serve to give an overall
idea of the parliamentary discussions. As explained above, following this model we can classify
the reasons put forward to attack (or to defend) a law into five categories: linguistic, systematic,
pragmatic, teleological, and axiological reasons—as we will see later, not all of them had the
same weight in our case. Although I cannot delve here into the great many issues raised during
the debates, MP’s argumentation could be synthetized, grosso modo, in the following terms.12

1) Linguistic reasons
Linguistic reasons were used with certain frequency to point out that the lack of clarity and
the imprecision in the wording of the bill favored the arbitrariness of the Administration,
particularly as concerns the application of sanctions. To give but a handful of examples, some

11
Congress’ Journal of Debates (Diario de Sesiones), X Session, no. 230, 16 October 2014, p. 22 ff.
12
In what follows, citations of debate passages combine a capital letter with a number. “A” stands for
the debate held on 25 November 2014 (Congress’ Journal of Debates, X Session, Committees, No. 35);
“B” for the plenary debate held on 16 October 2014 (Congress’ Journal of Debates, X Session, Plenum,
no. 214); “C” for the plenary debate held on 11 December 2014 (Congress’ Journal of Debate, X Session,
Plenum, no. 233); “D” for the plenary debate held in the Senate on 12 March 2015 (Senate’s Journal of
Debates, X Session, no. 68); and “E” stands for the plenary debate held in the Congress on 26 March
2015 (Congress’ Journal of Debates, X Session, Plenum, no. 252). The number following the capital
letter indicates the page number in the Congress’ or Senate’s Journal of Debates. All debate minutes are
available at: www.congreso.es
8 Legislation and Argumentation 160

parliamentarians complained about the abuse of “indeterminate legal concepts” in phrases such
as “lack of respect and consideration” towards members of the police (C 79); “unauthorized
use of images that may endanger the personal or family safety of the [police] agents” (D
14059); or “rational indications” that an alteration of citizen security may occur (D 14069).
Also criticized was, in the same vein, that the bill did not establish “a concrete definition and
a clear prohibition of the use of ethnic profiles for the practice of identification and [for the
keeping of] police records” (D 14080), nor did it make clear what “means of violent action”
could possibly be (even a bottle could) (D 14082), or what the phrase “defacing of mobile and
immobile property for public service use” exactly refers to (D 14091). Adversaries of the bill
also relied on linguistic reasons (e.g. about the recurrent use of terms like “indistinctly” or
“likewise”) to criticize that the bill did not clearly delimit the competences between the state
police corps and the regional ones in Euskadi and Catalonia, but, as mentioned, those
amendments were accepted during the parliamentary processing of the bill.
On their part, the parliamentarians of the Popular Party recalled that the original text had
been submitted to various advisory bodies with the purpose of achieving “more precision,
clarity and quality of the text” (B 47); that in the years 2005 and 2006 there had been 12 million
identifications due to the overly interpretable and extensive nature of the previous regulation,
and that this was something that had now been improved (B 55); that, for the first time in a
legal text, “the way in which frisking may be performed is conditioned and delimited” (D
14075); or that “the concept of citizen security” is defined “for the first time, and in the light
of the case law of the Constitutional Court” (E 66).

2) Systematic reasons
The most significant and pervasive attack on the bill concerns the disproportionate
magnitude of sanctions—a critique virtually omnipresent in the speeches delivered by the
opposition. In establishing disproportionate sanctions—so the argument went—, the bill runs
counter to basic norms of the Spanish legal system and of International Law. Moreover, it was
criticized that the bill was inconsistent, first, with statutory norms on distribution of powers
(competences) between the national and the regional police corps; and second, with the (then)
current regulation of minor offences (faltas) in the Criminal Code. As mentioned, however, the
government party accepted to amend the bill as regards the former inconsistency; so, in parallel
to this legislative process, the Criminal Code was modified, and behaviours formerly typified
as minor offences became either criminal misdemeanors (delitos leves) or administrative
infractions. Still, the conversion of criminal into administrative illegal behaviors was also
deemed unsatisfactory by the opposition parties, which considered that this change in legal
status actually implied an increase of sanctions and a reduction of guarantees.
The government party denied that the new law entailed a hardening of sanctions and that
these were disproportionate, claiming that “less is sanctioned and more is protected” (A 17).
One of its members challenged the opposition parliamentarians to point out some example to
substantiate the criticism they were making. And on several occasions, the government party
argued that the new sanctions were lower than those that could be found, for instance, in the
Sports Act— approved years before by the socialists—and that they did not go beyond the
sanctions provided for in the Emergency Act of the Basque Country (C 86).

3) Pragmatic reasons
On the pragmatic level, critics pointed out several dysfunctions that could result from the
application of the forthcoming law, contending, for example, that “the same behavior can be
prosecuted in Madrid or Cáceres but maybe not in Lleida or Álava” (A 11), or that the law
M. Atienza 161

“does not contemplate accessibility measures to guarantee the rights of people with disabilities”
(D 14063). Yet, the main reason of pragmatic nature against the law was that the administrative
sanctioning procedure, in practice, implied less guarantees—than the criminal procedure—and
high costs: “more fees and a jurisdiction [viz. a branch of the judiciary] that is more saturated
than the criminal one, without the guarantees of the latter” (B 51). In this connection, it was
also objected that the disproportionate sanctions included in the bill would actually prevent
citizens “from exercising their fundamental rights” (B 40); and that the bill had regulated
administrative interventions “from a self-protection perspective” that prioritizes “the interests
of the Administration itself” (D 14066), whereby the judicial control of these interventions by
administrative courts is possible only a posteriori.
The representatives of the government’s party replied that the scheme of sanctions did not
affect the effective judicial protection of rights and freedoms. They insisted that judicial fees
do not apply “when it comes to special procedures for the protection of fundamental rights and
public freedoms” (B 47); and claimed that there was no reason to think that the administrative
court proceedings were inferior to—or offered less guarantees than—the criminal ones: “why
is an administrative judge of worst condition than a criminal judge?” (C 86).

4) Teleological reasons
The reasons that tend to have a greater weight in the legislative phase—and that, in a sense,
govern the entire discussion—are those of a finalist or teleological nature. In fact, the main
argument put forward by the opposition groups was that, with this law, the government had
tried to repress citizen protests and thus face the social unrest produced by the economic crisis
and the cutting down of welfare state rights and benefits. In fact, the law is commonly known
as “Gag Act”—in some parliamentary sittings, a number of MPs showed up with their mouths
covered by gags. 13 The law would thus intend to “muzzle, to punish and to criminalize citizens’
protests and solidarity” (A 10), with the ideology underlying the bill being “that of the obedient
citizen who do not protest” (A 11); the bill just wanted “to censure, to silence and to muzzle”
(B 29); and “to persecute [current] forms of protest” (B 39), with each of its sections seemingly
punishing each of the forms of protest taking place at that moment—young people camping on
a square; protesters doing escraches (public shaming or harassment of politicians) or hanging
banners on buildings; anti-eviction citizen platforms, etc. Moreover, as the system of sanctions
had a purely punitive purpose—so the critique concluded—, neither “in the spirit” nor “in the
letter of this law” was there any room for “the principles of rehabilitation and re-integration”
[into society of convicted persons] (D 14063).
It is not very difficult to imagine what the replies to these objections were. The government
party alleged that the objective of the law has precisely been to “protect the rights of citizens
at any time” (A 15), not abolish them; and that is why “we have defined citizen security as the
guarantee that the rights and freedoms recognized and protected by democratic constitutions
can be freely exercised by the citizenry, and that they are not mere formal declarations” (A 15).
When confronted with the opposition’s most basic objection—that the law unduly restricted
rights—, the Minister of the Interior, in one of his speeches in Congress, “invited” critics “to
tell me only one of the restricted rights or one of the freedoms restricted in this law” (B 45). In
the last debate held in Congress, a Popular Party’s representative even claimed that, since the
purpose of the law was no other than to “expand freedoms and rights through guarantees that

13
The previous Organic Law 1/1992 on the protection of citizen security—enacted in a period of
socialist government—was known as the “kick-on-the-door Act”.
8 Legislation and Argumentation 162

we transfer to this law” (D 14086), it was evidently true that, as a result of this law, “Spain will
be more free because it will be more secure” (E 64).

5) Axiological reasons
If the above objectives are unjustified, it is because citizen security and public order cannot
become ends in themselves: as an MP argued, “citizen security and public order are not
fundamental rights of citizens (...); they are only means for the real and material protection of
the free exercise of rights” (B 44). Security and order are not values that can be put on the same
level as fundamental rights, and therefore, the law would have broken the balance that “should”
exist between citizen security, on the one hand, and freedoms and rights, on the other; a balance
that should be based on the fact that “the latter, evidently, are included in the Constitution and,
therefore, must prevail over the former” (D 14094). The bill was also criticized for entailing
“an appropriation of the public space”, now converted by administrative authorities into a space
“where citizens can only do what the law allows” (A 5). And, finally, the opposition parties
argued that this law was actually unnecessary, since Spain has one of the lowest crime rates
and the population, according to opinion polls, has “no concern for citizen security” (B 31) or,
in any case, security does not constitute a problem for the majority of the population.
In this respect, the arguments advanced by the party promoting the law did not attempted to
deny the existence of a tension between freedom and security, but to underline the weight that
should be accorded to security in this binomial: the bill was even praised for having struck an
adequate balance between the interests at stake, after a “prudent weighing” of “the values of
freedom and security” (and in line with the Council of State’s opinion), and in the conviction
that “citizen security is an indispensable requirement for the full exercise of fundamental rights
and public freedoms” (B 45).
The same analytical framework—that is, the same typology of legislative reasons—can also
be used to account for the discussion about perhaps the most controversial issue raised by the
Citizen Security Act of 2015: the modification of the Immigration Act (Organic Law 4/2000
on the rights and freedoms of foreigners in Spain and their social integration) introduced in the
final provision. This provision reads as follows:

Special rules for Ceuta and Melilla. 14 1. Foreigners who are detected in the demarcation
line of the territory of Ceuta or Melilla while trying to overcome the border contention
elements in an attempt to irregularly cross the border may be rejected in order to prevent
their illegal entry into Spain. 2. In any case, rejection will be carried out with due respect
to the international norms on human rights and on international protection [established in
treaties] to which Spain is a party. 3. Applications for international protection shall be
formally submitted through the authorized offices located at border crossing points, and
shall be processed in accordance with the provisions of international protection
regulations.

The reasons advanced by the opposition against this particular provision were:
1) Linguistic: the wording leaves many things unresolved; for example, “What will happen
to the swimmers who are not stopped at the border line, what does the text of the law says
[about this]? Or what will happen to the immigrants who arrive on the islets or rocks under
national sovereignty which are not part of the border line?” (E 60); in view of the wording

14
Ceuta and Melilla are “autonomous cities”, located on the African Mediterranean coast, in whose
surroundings hundreds of migrants wait for an opportunity to cross the Spanish border.
M. Atienza 163

given to this provision, security forces” are left with no orientation, which puts them, so to
speak, “under the feet of the horses” (E 63).
2) Systematic: this provision infringes Spanish legislation on foreigners and international
regulations; it was inserted into the bill by an amendment motion of the Popular Parliamentary
Party in Congress, thereby waiving “mandatory reports by the Council of State, the General
Council of the Judiciary, the Bar Council, etc.” (D 14095).
3) Pragmatic: the so-called “immediate returns” (devoluciones en caliente) neglect asylum
rights and imply the abolishment of “the rights to legal assistance and to an interpreter in
expulsion proceedings” (D 14084).
4) Teleological: what the Popular Party intends—it was alleged—is to legalize “immediate
returns”, but this is an impossible goal: “in the end, you [referring to the Minister of the Interior]
are placing the whole conflict between the conscience of the Civil Guard [members], who are
bound to comply with international regulations ... and the orders you give from your Ministry,
… orders that contravene the Spanish legal system and are not going to find [legal] coverage
in this amendment” (E 60).
5) Axiological: massive expulsions violate human rights, and constitute an unacceptable
practice: “I am not a jurist, but there is one thing I do understand: when someone enters the
sovereign territory of a State that proclaims itself to be democratic, when someone puts the feet
on it, this person is bearer of rights: to apply for asylum, to file appeals [against deportation],
etcetera” (C 81).
To defend the provision, the Popular Parliamentary Party likewise advanced reasons of all
five categories:
1) Linguistic: “What do we achieve with this regulation on rejection at the border? More
legal security ... More clarity” (C 87).
2) Systematic: The rejection of migrants will be carried out “respecting the international
norms on human rights and international protection [laid down in treaties] to which Spain is a
party” (E 64).
3) Pragmatic: In order to make sure that human rights and international norms are respected,
“applications for international protection will be formally submitted [through the offices that
have been authorized for this purpose] at border crossing points” (E 64).
4) Teleological: The goal of this provision is to provide the Civil Guard with “the necessary
protection and legal certainty”, so that “people and merchandise do not enter our country
illegally” (E 67).
5) Axiological: And the preceding claims are justified with the argument that “there is no
State in the world that forsakes its fundamental right to protect its borders” (E 66).
When trying to evaluate the argumentative quality of both positions in the light of the above
analysis, we find ourselves in a much more difficult scenario than in the case discussed in Sect.
8.2. In the debates on the Citizen Security Act parliamentarians do not seem to incur such gross
errors of argumentation as those we found in the debates on underage girls’ access to abortion,
which radically invalidated the position of one of the parties. Yet, this does not go to say that
fallacies are not to be found in the speeches delivered by Popular Party’s MPs. Here, evaluation
difficulties arise, rather, because the use of purely emotive or ad hominem arguments (which
incur e.g. the fallacy of avoiding or evading the issue) is more or less equally distributed across
the contributions of all speakers. I give some examples of this.
When defending the “total refusal” motion against the government bill in the Plenary of the
Congress of Deputies, the representative of the Socialist Parliamentary Party (Mrs. Rodríguez
8 Legislation and Argumentation 164

García) accused the Government of putting the rights and freedoms of citizens at risk by
creating a “state of malaise” that would have as a consequence that the Spaniards cannot live
in tranquility: “Yes, Mr. Minister, yes, ladies and gentlemen, the unrest of a family mother or
father who is unemployed and does not receive any kind of benefit; the restlessness of those
who work under precarious conditions... the restlessness of the patient”, etcetera. This point—
to which a significant part of her speech was devoted—may well hold true, but that does not
seem to have anything to do with the content of the bill. At the same time, the same MP incurred
a clear self-proclamation:

“Allow me to be proud of the contribution of socialist governments to the social model

of our country. It was us who led the universalization of health; who implemented public
education and generated a system of grants and scholarships”, etc. (B 43).

And she rounded off her speech with what may be considered as an interesting example of
non sequitur:

“If nine amendments to the totality have been presented in this House, if all the political
groups, of different ideology, have been able to agree on the rejection of this law, then it
is probably you who are wrong” (B 45).

Among the parties opposing the bill, however, socialists were not the only ones incurring
this type of fallacies. Consider the reply given by Asturian Senator Iglesias Fenández (United
Left) to the accusation of being exaggeratedly prejudiced against security. Senator Peñarrubia
Agius from Murcia (Popular Party) had stated: “to cite an example, attempting to avoid ... the
identification of those who use clothes to prevent or hinder the vision of their face is not very
reasonable” (D 14100). Senator Iglesias Fernández’s reply to this went: “there are people that,
because of religious beliefs, wear clothes hiding their faces without posing a risk to citizen or
public safety”. But Article 16 of the bill stated that the identification of such persons could only
be conducted when there are indications that they had participated in the commission of an
offence, or when the identification is necessary to prevent the perpetration of a crime, so the
reply was not a response to the objection raised. Moreover, Senator Iglesias Fernández argued
that security concerns were not warranted because “what generates insecurity in this society is
the delay in providing treatment for patients with hepatitis C; the evictions; that Coca-Cola
refuses to comply with a court’s ruling declaring [a number of recent] dismissals null and void”,
etc. (D 14103). Now, his reply evades the issue by moving the discussion point into the field
of emotions.
Still, this emotional shift is not as blatant as others we find in the debates. For instance,
Senator Baldoví (Compromís), challenging the Senate Committee’s opinion on the bill, made
the following argument—which also included references to Montesquieu or Voltaire: the law
is unnecessary; only “those who are afraid of freedom” ask for it; and “it is in times of
corruption when more laws are given”. As an evidence for this argument he added: “this week
we have seen how an anti-corruption public prosecutor has requested the exculpation of one
infanta [a daughter of the Spanish king] with higher education and a master’s degree because
she did not know what she signed, 15 whereas thousands of elderly ‘preferentialists’, 16 who
could not study because they had to start working at a very young age, have no chance because
they knew what they signed”; and he finished his speech by placing his identity card into his

15
At that time, this infanta’s husband was facing charges of corruption.
16
So-called preferentistas are bank clients who were fooled by some (savings) banks’ massive offer of
preferred stock viz. preference shares.
M. Atienza 165

mouth and raising his hands (C 72). Also Senator Cazalis, from the Basque Parliamentary
Party, incurred a similar fallacy when replying to the accusation of “imposture”. The critique
was that Cazalis’s defence of a Senate’s veto of the bill did not square with the amendment
motions he had presented, which led Senator Peñarrubia Agius (Popular Party) to reproach the
Basque and the Catalonian Parliamentary Parties for rejecting the bill in bloc without going
into its provisions: they “do not enter into the heart of the bill, into the articles, because in their
Comunidades Autónomas [regions], where they have [their own executive] competences, they
are actually interested in applying this law of the Popular Party Government” (D 14100).
Senator Cazalis’ reply consisted in reproaching Popular Party’s parliamentarians for acting as
if they were in possession of the truth and for not taking into account anything of what others
thought: “the real truth, Senator Peñarrubia, lies with citizens, and they usually put it into small
white and sepia envelopes. 17 And when citizens realize that the true truth [sic] they [voted for]
… does not match with what they were told or with what they thought they were voting for,
they change what is inside the two envelopes, and I’m sure that this is what will happen in this
case” (D 14103); a prediction, incidentally, that the general elections held some weeks later
did not confirm—perhaps because truth or correction, in political or moral matters, do not have
much to do with arithmetic.
In their speeches, the representatives of the Popular Party defending the bill showed a
noteworthy ability to detect fallacies in the argumentation of their opponents:

“If, in response to what the text [of the bill] says, one claims things that have nothing to
do with it, it is clear that we have a discussion typical for the Ollendorff method: you say
whatever you want, and I will answer whatever I want” (B 46).

And they also replied to critics through retortion:

“Almost all parties and spokespersons [who have contributed to the debate] have made
the reflection that, since virtually all parties in this Chamber have presented wholesale
refusal motions [against the bill], ... we have, or I have, done something wrong. Well,
with all due respect let me ... return the question, the reflection, to you; because, when
listening to some of the previous speeches, or to how Esquerra Republicana 18 or Amaiur 19
have justified their wholesale refusal motions, some of you should be worried about the
great similarity between your wholesale refusal motions against the text and theirs” (B
48–49).

Yet, the Popular Party’s MPs committed fallacies, too. Again and again, the main reason
they advanced for justifying the sanctions provided for in the bill was that these sanctions were
not more severe than those which were established in laws passed under the government of the
Socialist Party. But what would have to be discussed, of course, was not this, but whether the
sanctions provided for in the 2015 bill were acceptable or not. Similarly, when trying to meet
the objection that they had submitted a “repressive” bill, they did not give reasons showing that
the bill’s contents were needed for the protection of human rights. Instead, the representatives
from the Popular Party—in this case, Senator Aznar Fernández—resorted to personal attacks
and, once again, appealed to the audience’s emotions—to the emotions of the members of the

17
In general elections in Spain, ballots and ballot envelopes are white for deputies (to Congress) and
sepia for senators.
18
The Republican Left of Catalonia is a Catalonian independentist party.
19
Amaiur is a left-wing independentist coalition from the Basque Country and Navarre.
8 Legislation and Argumentation 166

Popular Party attending the sitting, but perhaps also to the general public’s emotions, as
speeches could eventually have some repercussion in the media:

“Notwithstanding the respect I personally have for you [referring to Senator Mrs. Capella
i Farré (The Republican Left of Catalonia)], where do you have the exclusive patent for
the defense of human rights? Who gives you the moral authority to distribute licenses of
democrats, to distribute licenses of defenders of rights and freedoms? What you have said
in this room, Mrs. Capella, is not admissible. (Applause).
Mrs. Mendizábal [from Amaiur], 20 as senators occupying these seats, we only needed to
hear that Amaiur would come here to give us lessons on democracy. I’ve seen a lot of
things in politics, but I still had to see this one, and this morning you’ve made it. But, how
do you have the moral nerve to speak about repression…? Repression, hon. Senator, is to
lock in [people] against their will and under inhumane conditions, to keep a person
kidnapped for 532 days, and not to condemn it. (Applause). That’s repression. Shots on
the nape are repression” (D 14072).

Finally, the parliamentarians of the Popular Party also incurred a fallacy when reproaching
Convergència i Uniò 21 for being incoherent. They claimed that this party—like other political
forces of more or less conservative ideology—should not oppose the bill; and that, if they had
done so, it had only been for electoral reasons (so the alleged unanimity against the bill among
the opposition parties would be spurious). Again and again, the parliamentarians of the Popular
Party argued that the aforementioned Catalonian party acted incoherently, since it had pleaded
before for the modification of the previous regulation on citizen security—adopted in a period
of socialist government. The fallacious character of this appeal to coherence was highlighted
by a representative of Convergencia i Unió, Mr. Guillaume i Ràfols:

“Last Tuesday the Secretary of State told us that asking for a new citizen security law and
now voting against it was a great inconsistency... but I’m going to make an Aristotelian
syllogism, as we used to do in the third year of high school… so that the Secretary of
State’ argument is not brought forward anymore. It’s very simple. First premise:
Convergència i Uniò calls for an organic law on citizen security. Second premise: the
Popular Party presents a proposal for an organic law on citizen security. Conclusion:
Convergència i Uniò has to be in agreement with this law as presented by the Popular
Party. I suppose that thanks to this simple high school syllogism you will realize that there
is an evident sophism here, and [I also suppose that nobody] will insist on the Secretary
of State’s claim that there is an inconsistency between asking for a law on citizen security
and not liking this one” (C 80).

But parliamentarians of the Popular Party dwelled upon the criticism of incoherence, which
reappeared in later moments of the parliamentarian process.
As noted earlier, an evaluation of the quality of these debates is not a straightforward task.
From the perspective of “argumentative technique”, i.e. considering both formal and pragmatic
(dialectical and rhetorical) aspects, there is no compelling reason to decide in favor of one or
the other competing positions. Yet, this does not mean that there are no criteria at all. What it
means is that these criteria are, fundamentally, of a material nature; in this case, they would

20
This electoral coalition is connected to Batasuna, a political party—now disappeared—that supported
ETA’s terrorist actions.
21
“Convergence and Union” (short: CiU) was a Catalonian nationalist electoral alliance consisting of
two parties: Democratic Convergence of Catalonia and Democratic Union of Catalonia.
M. Atienza 167

depend on abstract considerations related to the way of conceiving fundamental rights (and of
resolving the possible contradictions between security and freedom), as well as on other, more
specific considerations related to the way of interpreting the Constitution and international law
on human rights. And that is why, when it comes to evaluating this law in the post-legislative
phase, the Constitutional Court’s decision on its constitutionality will have to be considered as
a strong argument; 22 however, the Court’s decision should not be taken—as is often done—as
a conclusive argument, neither in this case nor in others. Apart from the obvious fact that only
a limited number of laws is challenged before the Constitutional Court (so its rulings cannot
offer yardsticks to evaluate all laws), two important points are worth recalling in this regard:
first, constitutional courts are not infallible: they may well have the last word, but their
decisions are not necessarily correct; second, a law whose content is held constitutional (or
constitutionally justifiable) is not necessarily a good law: it can be ineffective, it may not have
achieved the objectives it pursued, etc.

8.4 Conclusions

I will now try to formulate five conclusions that—I believe—could be drawn from the above
analysis, and that may perhaps clear the ground for a fruitful discussion on the subject (or on
some aspects of it).
(I) Obviously enough, two single cases do not make a sufficient basis for any generalization.
But we could give some “indicative” value to the above analysis, in the sense that it confirms
that the typology of legislative reasons suggested at the outset can be useful. Actually, this is
almost a common-sense typology, since the activity of issuing a law implies the will to achieve
a certain social objective (teleological reasons) that must be justified (axiological reasons), for
which it is necessary to formulate a set of well-constructed statements (linguistic reasons)
whose content fits in with the legal system (systematic reasons) and gives rise to actions
(pragmatic reasons) that allow the achievement of the objective.
Of course, these are not the only types of reasons which can be used in lawmaking contexts.
If by reason we understand what can be argued in favor or against a thesis, then there may be
many types of reasons and many ways of classifying them (Atienza 2013). When arguing about
legislation, for instance, one may appeal to authoritative reasons, institutional reasons, etc.—
one might draw some parallelism with the justificatory reasons within judicial reasoning. But
I think that the five types of reasons identified here play something like a leading role, so that
other types of reasons may be connected with them. And if this is so, then it might make sense
to try to refine and improve this classification.23 For example, systematic reasons can be sub-
classified, as I have done in this article, into procedural reasons (referring to the norms that
regulate the legislative process) and substantive reasons. In addition, the notion of legal system
must not be exclusively characterized in terms of legislative gaps (loopholes) and
contradictions (antinomies); or, to be more precise, gaps and contradictions do not only involve
rules, but also principles and values which also belonging to our legal systems, where the
Constitution plays a pre-eminent role. In other words, systematic reasons are not merely formal,
and that is what has led me to avoid talking of “legal-formal rationality”—a phrase I used in
previous works. For the rest, it is obvious that some reasons may have an ambiguous status, or

22
The Spanish Constitutional Court accepted an appeal of unconstitutionality against various articles of
the act (the Court’s decision is still pending).
23
Cf. Oliver-Lalana (2013: 147 ff.).
8 Legislation and Argumentation 168

may be, simply, “transversal” reasons crossing several of those five categories. In fact,
elsewhere I have added a sixth level of rationality to the diagram which is based on the idea of
“efficiency”—understood not in economic terms, but as an equilibrium or general balance: in
a way, this efficiency is equivalent to “reasonableness”. This dimension points to the
optimization of other levels of rationality, and covers those reasons which can be used to justify
trade-offs between them. 24 For instance, lawmakers may accept a limited achievement of a
valuable legislative goal if a full achievement of this goal entails too negative an affection of
systematic or pragmatic aspects, i.e. makes it impossible to satisfy the requirements associated
with systematic or pragmatic rationality. The judgment on the greater or lesser goodness of a
law must be, ultimately, an overall or holistic judgment.
This typology of legislative reasons also allows the reconstruction of fragments or samples
of legislative argumentation, as has been done in the two cases discussed here. That is, each
point under discussion could be formulated as a question belonging to one of the five (or six)
distinguished categories. For example: Is the phrase “…” clear enough? Does it fit in with the
new regulation on “…”, or with such and such rules and principles of the legal system? What
social effects can be expected to occur as a result of the new regulation on “…”? And so forth.
To be sure, the process of legislative discussion does not follow the ordering of reasons I have
presented here, that is, MPs do not start by discussing linguistic issues and then move on to
systematic issues, etc. Moreover, the greater emphasis placed on one or another type of issues
depends on circumstances such as the legislative phase (draft bill, presentation of amendment
motions, discussions in committee and in plenary session…), or the type of law that is being
discussed. There are laws of an eminently technical nature that do not present specific problems
of justification—inasmuch as their underlying objectives are largely shared among all parties. 25
By contrast, laws like the ones analyzed here have a strong component of political morality, so
that the discussion focuses on teleological and axiological reasons. For the rest, axiological
reasons do not boil down to purely constitutional (or legal-constitutional) matters, in the sense
that any constitutional interpretation presupposes a certain conception of political morality as
a starting point. To give but two examples, the way of conceiving the relationship between
security and freedom presupposes a certain conception of those values (within the limits set by
the constitutional text); and the concept of dignity, on which most contemporary constitutions
and bill of rights are based, also has an obvious, inherent moral character, that is, it cannot be
grasped independently of some moral philosophy.
(II) A model for the analysis and evaluation of legislative argumentation—as carried out in
a legislative assembly—could be structured into a series of stages or steps:
1) Presentation of the circumstances in which the bill is submitted to Parliament. This must
cover, on the one hand, an explanation (in terms of political, social, economic… conditions) of
the existence of a problem that calls for legislative change; and, on the other, an explanation of
how the legislative process has been conducted so far. Roughly, this stage would be equivalent
to what the narration or exposition of the “facts of the cause” was in classic rhetoric.
2) Identification of the fundamental points of discussion, i.e. of the (specific) issues that
MPs have argued about, correlating them with the five categories mentioned above.
3) Identification of reasons in favor or against adduced, with regard to each of these points,
by all parliamentarians or parliamentary parties participating in the discussion.

24
See Díez-Ripollés’ piece in this volume (Chap. 3, Sect. 3.3.2).
25
To give but some examples, in this session (legislatura), the Spanish Parliament discussed and
approved an Act on maritime navigation, an Act on metrology, or an Act on the mutual recognition of
criminal judgments within the European Union.
M. Atienza 169

4) Representation of the results of the preceding steps by means of arrow diagrams (if
needed), which may depict the entire argument and/or one of its parts.
5) Detailed examination—if applicable—of any arguments that have played a central role
in the debate (thus, for instance, the consequentialist argument examined in our first legislative
cases). Along this detailed examination, the “critical questions” to be asked vary depending on
the type of argument. Critical questions about consequentialist legislative arguments could be,
for instance: To what extent can it be accepted that reforming the law will produce such and
such consequences? Why are these consequences desirable (or undesirable)?
6) Identification of dialectical elements in the discussion. Here it must be taken into account
that only the public part of legislative deliberation is being considered; and that such dialectical
elements must be interpreted within an argumentative context in which, rather than a proper
dialogue, what we often find—at least in many parliaments—is a succession of monologues.
7) Identification of rhetorical elements: type of language and rhetorical techniques used;
characteristics of the speaker and the audience; role of the public opinion.
8) Identification and analysis of the fallacies that emerged during the debates.
9) Overall evaluation of argumentation. This step is about making a judgment on whether
the new regulation is actually justified or not, or to what degree it is, according to the arguments
which have been provided, and in the light of the five perspectives highlighted here: linguistic,
systematic, pragmatic, teleological and axiological.
(III) The most common types of arguments in legislative argumentation—which
considerably differ from those that play a leading role in judicial argumentation—must be
analyzed in depth and “on the ground”, not only in the abstract. It would be necessary, that is,
to collect abundant empirical material (from different political systems) in order to identify
what those arguments are, when and why they are used, how to test their greater or lesser
strength, etc.
In absence of such a comprehensive and systematic study, there are some things that can be
said about our theme, and that may eventually serve as tentative research guidelines. In this
regard, it seems obvious that subsumption (as a classificatory argument) cannot play here the
central role it performs in judicial reasoning; legislative argumentation, while not entirely
unrelated to subsumption, is more open and more complex.26 In fact, problems of legislative
rationality (linguistic inaccuracies, lack of systematicity, etc.) somehow parallel questions of
interpretation raised in the judicial field—in a manner, the former and the latter problems are
two sides of the same coin. And likewise apparent, in view of the characteristic purpose of
legislation, is that consequentialist or finalist reasoning is the central argument in parliamentary
debates—as we have seen with some detail in our first case study (Sect. 8.2).
Another type of distinctive legislative reasoning which deserves careful consideration is
balancing. As is well known, in recent years balancing has been at the heart of the scholarship
on theory of law and legal argumentation.27 But, in general, this scholarship concentrates only
on judicial balancing. It would be worth setting a focus on the type of balancing that legislation
necessarily implies: the concretization and mutual adjustment of legislative objectives—the
result of which is the text of the law. 28 The notion of reasonableness I referred to above—which

26
See Atienza (2013).
27
See Atienza and García Amado (2014); and Atienza (2017).
28
See, in this volume, Chap. 6 (Sieckmann 2018) and Chap. 7 (Marcilla 2018), as well as Oliver-Lalana
(2016: 9–10).
8 Legislation and Argumentation 170

underlies the overall judgment I have just suggested as the final stage of my approach to the
analysis and evaluation of legislative debates—cannot consist but in balancing. Perhaps it may
even be said that balancing is something like the internal justification scheme of legislative
argumentation—it is, so to speak, the legislative counterpart of judicial syllogism. 29
A type of reasoning of great practical importance, as we have seen in our two case studies,
is the argument from authority. 30 In relation to the Citizen Security Act, both critics and
defenders of the new legislation did constantly refer to various “authorities” in support of their
theses: the Council of Public Prosecutors, the General Council of the Judiciary, the Council of
State, the UNHCR, Amnesty International, the Office of the UN High Commissioner for
Human Rights, or even several professors of criminal law. In a certain way, this argument is
the other side of the ad hominem argument, in the sense that both appeal to the acts or opinions
of a person or institution, either to justify (argument from authority) or to reject a thesis
(argument ad hominem). The argument from authority can be divided into two types depending
on whether the invoked authority is a “theoretical” authority (say, an expert) or a “practical”
one. In both cases, the structure of reasoning (the argument scheme) is essentially the same—
and it is quite simple. An argument from practical authority has the following structure: (i) “X
has established (opined, etc.) that, in conditions C, A should be done (for example, A = not to
sanction behavior Z); (ii) “X has authority over Y (which is in conditions C; it has competence
to regulate Z); therefore, (iii) Y (given conditions C) should do A”. And the validity or strength
of this form of argument will turn on the answer to questions such as: Has X really established
that, in conditions C, A must be done? Are conditions C given? Is X really an authority in that
area? Is there any other type of authority that is coincident or opposite to that of X? What is
the basis of the authority of X? A similar analysis applies to the theoretical use of this argument,
that is, when someone’s authority is invoked to support the claim that the current situation, as
regards a given problem, presents the characteristics X and Y, or that the introduction of such
and such measure will produce such and such effect in the future. In this connection, it seems
reasonable to think that the growing tendency to use this form of argument, in its theoretical
version, responds to the likewise increasing complexity of the issues that must be regulated: in
order to cope with this complexity, a big deal of expert knowledge is needed which legislators
do not have. As for the practical reasoning from authority, its importance seems to be due to
the increasing openness of the legal systems and, in the case at hand, due to the existence of a
certain international consensus on human rights.
(IV) Over the last decades the study of fallacies—bad arguments that seem good ones—has
become a key focus of argumentation theory. 31 And there is an almost universal agreement on
considering that the task of detecting and combating fallacies is not just a matter of logic. There
are, that is, not only formal fallacies (that contravene the laws of formal logic) but also, and
above all, informal fallacies which have to do with the pragmatic dimension of an argument—
and can be labelled fallacies only in the light of context. This is of the utmost relevance when
it comes to studying legislative argumentation, where the dialectical and particularly the
rhetorical elements play a crucial part. To give an example: arguing ad hominem is not
necessarily a fallacy within a parliamentary debate (nor in other contexts, actually); it will only
be a fallacy under certain circumstances—for example, if it is used as a distraction maneuver,
or to unjustifiably disqualify the other party.

29
For a different understanding of the “internal” legislative justification, see Oliver-Lalana (2017).
30
On the argument from authority, see Atienza (2012) or, more in depth, Atienza (2014).
31
See Atienza (2013 and 2016).
M. Atienza 171

Parliamentary debates on legislation 32 are a fertile ground for the study of fallacies. Let us
recall that this was one of the areas that Bentham had in mind when writing his famous work
The Book of Fallacies. 33 He had the idea that the defense of (and the opposition to) abuses of
power in the past had been made “by fire and sword”, whereas at the time of his writings “the
weapon of fallacies” was universally extended, so that it was needed to combat it by the “use
of reason”. This is a beautiful enlightened ideal to which the current theory of legislation should
intensively contribute, for the proclivity to commit fallacies does not seem to have diminished
after the rise of the contemporary Constitutional State. But one should be aware that this may
be quite laborious a task for legisprudence—or, if you will, it may be more difficult than first
appears. And, of course, to succeed in this task, much more must be done than simply defining
a “catalog of fallacies”, i.e. of erroneous or deceptive ways of arguing—such a catalog may be
useful, though.
To my mind, the best way to understand what a fallacy is would be to see it as an “unlawful”
or illegitimate argumentative move, i.e. as an argumentative action that seems licit but is not,
because it infringes some of the rules of the good argument, either by way of fraud (sophistry)
or by way of recklessness (paralogisms). But this means that, in order to determine what a
fallacy is in parliamentary debates, we first need to specify the type of debate we are dealing
with, and what the rules are which characterize it. And that involves a fundamental problem
about how we conceive of legislative argumentation—I turn to this point in my next and last
conclusion.
(V) In the last decades the most famous thesis on legal argumentation—widespread among
all those who are interested in this field—is probably the “special case” thesis advanced by
Robert Alexy in his 1978 work Theory of Legal Argumentation (Alexy 2010) and several later
writings.34 According to this thesis, legal argumentation would be, in all its instances (including
legislative argument), a “special case” of general practical argumentation. As is well known,
Alexy has defined and structured general practical argumentation through a series of rules and
forms of discourse that include, among others, the obligations not to contradict oneself, to be
sincere, to respect the principle of universality, etc. Basically, he offers a systematic
reconstruction of the rational viz. rational-practical discourse that characterizes the
Habermasian “ideal community of speech”. Alexy’s thesis—I would say—clearly goes against
the most traditional conception of legislative argumentation. Recall, for instance, Aristotle’s
classification of three rhetorical genres: one of them was the genre of deliberative rhetoric,
which would parallel the political (and legislative) argument of our days. And rhetoric is a
persuasion technique that involves—also according to Aristotle’s scheme—resorting to the
orator’s mood or appealing to the audience’s passions in ways that are clearly incompatible
with the rules of the Habermasian-Alexyan rational dialogue. But this circumstance, as I have
just pointed out, has not affected the remarkable success of Alexy’s special case thesis among
legal argumentation theorists. And this, in my opinion, constitutes an important and manifest
mistake, for, if Alexy’s thesis is taken seriously, it would actually be impossible to give an
account of legislative reasoning—and also of other forms of reasoning which are typical for
the legal realm, such as the lawyers’ reasoning.
Tough I have already mentioned this point, let me now underline it. It is not only that the
rules established by Alexy are not fulfilled in actual parliamentary debates. The thing is, rather,
that these rules cannot be fulfilled in these debates, and therefore it makes no sense to present

32
This is the type of debates which concern us here, but, of course, parliamentarians do a number of
things other than approving bills, and therefore debate on many other questions.
33
Bentham (2015).
34
See further Atienza (2017b).
8 Legislation and Argumentation 172

them as a sort of “regulative ideal”. Alexy’s mistake—which does not outweigh, of course, the
many crucial contributions he has made—is to think that one and the same type of discourse
can be used as a model for the very different areas of legal argumentation. Or, to put it more
nuancedly: his mistake is to think that it is possible to give an account of all these areas just by
adding new argumentation rules to the set of rules defining general practical discourses (with
the new rules being compatible with the preexisting ones). As a result, this approach simplifies
and idealizes—i.e. distorts—reality, and therefore cannot be very useful to understand or to
guide the practice of legal argumentation. This conception, that is, proves to be inadequate not
only when it comes to understanding and evaluating an argument made by someone but also
when it comes to arguing.
All this goes to say that an overly idealized conception of argumentation does not serve (or
does not serve much) to study parliamentary debates aimed at the approval or rejection of
bills. 35 And it does not help us, either, to detect fallacies and to fight them. The rules of
parliamentary discussion (parliamentary debate) have an inherently strategic nature, and
necessarily include some justification of partiality. The arguments that a political representative
advances when defending a legislative measure cannot be the same arguments a philosopher
would use in the context of a Platonic dialogue. This does not mean that everything is allowed,
or that the rules of purely rational discussion—including some claim to impartiality—do not
play any role in parliamentary debates. To be sure, in the field of legislative argumentation
there are also certain ethical limits that cannot be transgressed—and the same goes for lawyers’
argumentation. 36 But such limits have not exactly to do with respecting the rules of general
practical discourse —i.e. the rules that, according to Alexy’s conception, define the core of the
claim to correctness. As I see things, there is surely some connection between legislative
argumentation and what Alexy understands by general practical argumentation; this, however,
does not imply considering the former as a special case of the latter. Such a connection cannot
be based on any idealization of reality but, at the same time, it should somehow preserve the
primacy of rational discourse in the realm of praxis. And that is indeed what can be achieved
by considering that the rules governing legislative argumentation—or those governing lawyers’
argumentation—can be justified through the rules of rational discourse. And this significantly
differs from Alexy’s approach. What I mean is that, according to the rules of rational discourse,
straying away from these very rules may be justified in certain contexts or practices, such as
parliamentary discussion or lawyers’ argumentation. And what results from all this is the need
to define, as precisely as possible, the rules that govern legislative argumentation. The
challenge, that is, is how to characterize this kind of discourse in a way that avoids idealization
but does not preclude the possibility of rational criticism.

References

Alexy, R. 2010. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal
Justification. Oxford: Oxford University Press.
Aristotle. 2009. Rhetoric. Knutsford: A&D Publishing.
Atienza, M. 1992. Practical Reason and Legislation. Ratio Juris 5(3): 269–287.
Atienza, M. 1997. Contribución a una teoría de la legislación. Madrid: Civitas.

35
In Chap. 7 (Sect. 7.3.2), Gema Marcilla (2018) defends a different position.
36
See on this Atienza (2017a).
M. Atienza 173

Atienza, M. 2005. Legislation and Argumentation. In The Theory and Practice of Legislation, ed. L.J.
Wintgens, 297–317. Aldershot: Ashgate.
Atienza, M. 2012. El argumento de autoridad en el Derecho. El Cronista del Estado Social y
Democrático de Derecho 30: 14–27.
Atienza, M. 2013. Curso de argumentación jurídica. Madrid: Trotta.
Atienza, M. 2014. El argumento de autoridad en el Derecho. In La notion d’autorité en droit, ed. J.
Gagiao y Conde, 67–98. Paris: Éditions Le Manuscrit.
Atienza, M. 2015. La guerra de las falacias. 4th edn. Alicante: Librería Compás.
Atienza, M. 2017a. Filosofía del Derecho y transformación social. Madrid: Trotta.
Atienza, M. 2017b. Alexy and the “Argumentative Turn” in Contemporary Legal Theory. In
Rechtsphilosophie und Grundrechte. Robert Alexys System, eds. M. Borowski, S. Paulson, and J.-R.
Sieckmann, 207–224. Tübingen: Mohr Siebeck.
Atienza, M. and J.A. García Amado. 2014. Un debate sobre la ponderación. Lima: Palestra.
Bentham, J. 2015. The Book of Fallacies. In The Collected Works of Jeremy Bentham, ed. Ph. Schofield.
Oxford: Oxford University Press.
Marcilla, G. 2018. Proportionality in Lawmaking. An Attempt of Justification in the Light of both a
Constitutionalist and an Argumentative Conception of Law (in this volume).
Oliver-Lalana, A.D. 2013. Rational Lawmaking and Legislative Reasoning in Parliamentary Debate. In
The Rationality and Justification of Legislation. Essays in Legisprudence, eds. L. Wintgens and A.D.
Oliver-Lalana, 135–184. Cham (Switzerland): Springer.
Oliver-Lalana. A.D. 2014. Normas y razones. In La argumentación jurídica en el Estado constitucional,
eds. P. Grández and F. Morales, 491–528. Lima: Palestra.
Oliver-Lalana, A.D. 2016. ¿Le importa a alguien que los legisladores razonen? Lisbon Law Review LVII:
5–37.
Oliver-Lalana, A.D. 2017. Mejores y peores argumentaciones legislativas. Paper held at the Workshop
“La motivazione delle leggi”, Università di Milano, April 2017. Manuscript on file with the author
(a shortened version in Italian has been published as: Megliori e peggiori argomentazioni legislative.
In La motivazione delle leggi, eds. F. Ferraro and S. Zorzetto, Torino: Giapichelli, 2018).
Sieckmann, J.-R. 2018. Legislation as Balancing (in this volume).
Chapter 9
Legislative Deliberation and Judicial Review: between
Respect and Disrespect for Elected Lawmakers

A. Daniel Oliver-Lalana *

Abstract 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 well look at parliamentary debates as an interpretative aid, but are not expected to assess them; and
it is only very exceptionally that the quality of these 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 legal culture of justification, however, judicial
indifference to the quality of legislative deliberation is somewhat of a puzzle, 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 that plenary and committee sittings in
parliament are not a proper source of legislative justification or have no bearing on the interpretation of
basic rights or the permissibility of statutory interferences with them. In constitutional democracies, this
(mis)conception might even weaken the legitimacy of judicial review—if laws that were duly considered
by the legislature are struck down or, conversely, if courts are too deferential to decisions that have not
been debated. Thus, a judicial focus on parliamentary debates could be, after all, less eccentric than first
appears. In that connection, this chapter explores what room there could be for arguments based on the
quality of legislative deliberation within the judicial review of statutes, and discusses some of the
difficulties that appraising this quality involves. Both issues prove critical to legisprudence as a theory
which claims to take both (elected) lawmakers and constitutional rights seriously.
Keywords Parliamentary debate • Process review of laws • Margin of appreciation • Due deference •
Legislative rights review

The ideology underlying modern legal systems tells a nice story about our laws: they are
(expected to be) sensibly discussed in parliament by the people’s representatives, which

A.D. Oliver-Lalana ()

Universidad de Zaragoza, Facultad de Derecho.
Ciudad Universitaria, E-50009 Zaragoza (Spain).
e-mail: [email protected]

I thank all participants in the International Conference on Legisprudence (Zaragoza, 2018) for
constructive comments and criticism. The elaboration of this paper was supported by the Ramón y Cajal
Research Fund and the project DER2014-55400-R (Spanish Ministry of Economy), as well as by the
Legal Sociology Lab of the University of Zaragoza (Research Group Strategy of the Government of
Aragon, 2017/2019).
9 Legislative Deliberation and Judicial Review 176

furnishes legislative decisions with two privileged, interwoven credentials—democracy and

reasons. Few actually believe the story, but whoever plays the legal game must arguably
endorse such an expectation and act as if it made sense. Assuming that parliamentary
deliberation belongs to the process of legislative justification and elected lawmakers are
endowed with genuine political legitimacy, it would then appear that their debates must
somehow matter to any court called upon to check the validity of statutes. But do they really?
What room is there and should there be for arguments based on (the quality of) legislative
deliberation within judicial review? This very question may already puzzle readers who take
for granted that courts of justice reviewing laws do and should never accord importance to the
quality of legislative debates. Yet, descriptively, this belief is misguided: judges have long
done so—albeit timidly and sporadically—, with the current growth of process-oriented review
of laws vivifying this latent practice. In normative terms the matter is not obvious, either.
Whether judges should, or should not, take deliberation quality as a yardstick merits at least
academic attention, for key theoretical issues are at stake. Most apparently, the question affects
the old democracy versus juristocracy quarrel which pervades judicial review literature. In the
context of the control of laws, analysis of the value of parliamentary debates also intermingles
with problems of legal interpretation, particularly as concerns the contested role of legislative
history and intent in statutory construction. 1 Lastly, an enquiry into this topic may shed some
light on the largely understudied connection between legisprudence and representative and
deliberative democracy; argumentation (de lege ferenda reasoning); and legislative rights
review.
Against this backdrop the thesis I would like to posit can be phrased as follows: in a
constitutional democracy that comprises judicial oversight of the compatibility of statutes with
basic rights, and that is in turn embedded in a culture of justification, the argument from
legislative debate quality is perfectly valid for adjusting due judicial deference to parliaments
and their laws. What is more: courts prove themselves even more respectful towards elected
lawmakers and their constituencies by adequately resorting to this argument than by
discounting it. So stated, however, my claim is too abstract and needs much specification. This
paper pursues to concretize it in a way that makes it plausible. To this end, I begin with a couple
of examples which illustrate how process-oriented judicial review is being extended to
legislative deliberation (Sect. 9.1). Thereafter I summarize the standard objections against
incorporation of debate quality into judicial review, which is often regarded as a kind of
pathology (Sect. 9.2). To my mind, such objections are constitutionally formalistic and do not
live up to a culture of justification (Sect. 9.3). After thus introducing my case for debate review,
further clarification will be sought from among the available doctrinal accounts of the argument
from parliamentary deliberation and engagement with constitutional rights (Sect. 9.4). While
attentive observers have pinpointed some flaws in the approach followed by the judiciary,
appraising the quality of legislative debate raises additional methodological problems that must
be addressed if this appraisal is to be integrated into constitutional review (Sect. 9.5). Even if
my thesis is ultimately rejected, I feel that it nevertheless remains worth putting on the table,
for this might stimulate further research on how we could possibly cope with the difficulties
posed by debate review, and contribute to dispelling a widespread “juristic” misconception on
legislation: that parliamentary discussions are not a proper source of statutory justification and
have no bearing on the construction of rights or the permissibility of interferences with them.

1
Cf. recently Nourse (2016) or Rosen (2017), and, for an overview of current debates on this point,
Frieling (2017).
A.D. Oliver-Lalana 177

9.1 More than Anecdotal Remarks

Normally, courts controlling parliamentary laws examine these as outcomes or products, trying
to establish whether the final statutory content contravenes constitutional norms and
fundamental rights—as judicially construed. Under this approach, the quality of parliamentary
deliberation, like that of the legislative method at large, is supposed to be irrelevant. The
approach does vary across jurisdictions. In the USA, for instance, we can find it in quite an
extreme shape: to borrow from Scalia, nothing requires that laws “be supported by committee
reports, floor debates, or even consideration, but only by a vote”. 2 While this may not hold true
for other constitutional settings, the underlying standpoint remains: provided that formal
lawmaking proceedings are respected, the validity of statutes is to be judged objectively and
not “by the quality of the reasons advanced in support of the measure in the course of
parliamentary debate”, which cannot “count against” the legislation. 3 Deviations from this
approach are rare, but can be gleaned from the case law in several jurisdictions, namely in two
major, eventually overlapping modes: a court may evaluate the quality of debate content, i.e.
the substance of the arguments advanced by MPs, or limit itself to assessing the procedural
virtues of parliamentary deliberation as a whole. For the moment, let me concentrate on the
latter—I will turn to the substance vs. process distinction in Sect. 9.5.
Whilst process-oriented assessments of legislative deliberation are mainly implicit or minor,
they do occasionally play a role in judges’ constitutional reasoning. Consider some examples.
When upholding a blanket ban on corporal punishment in UK schools, the House of Lords
(now Supreme Court) underlined that the merits of the ban had been “investigated and

2
Sable Communications v. FCC, 492 U.S. 115 (1989) at 133 (Scalia J., concurring). The entire quote
reads: “I do not understand the Court to suggest that such data must have been before Congress in order
for the law to be valid. Even though ‘[n]o Congressman or Senator purported to present a considered
judgment’ on infeasibility (…) the law would be valid if infeasibility was true. Neither due process nor
the First Amendment requires legislation to be supported by committee reports, floor debates, or even
consideration, but only by a vote”—as Coenen (2009: 2864 n. 179) notes, “no other member of the Court
signed on to this disclaimer”. Scalia has used even harsher words to criticize the interpretive use of
legislative intent and history: “I, frankly, don’t care what the legislators’ purpose is beyond that which
is embodied in the duly enacted text. (…) So our delegates to Congress are not meticulous? No, we have
to assume the contrary. That is the assumption of democracy (…). Since we can’t know what’s in the
minds of 436 legislators (counting the President), all we can know is that they voted for a text (…). In
fact, it does not matter whether they were fall-down drunk when they voted for it. So long as they voted
for it, that text is the law” (Scalia and Manning 2012: 1613). In this vein, albeit more nuancedly,
Canadian Justice Abella has written: “the degree of legislative time, consultation and effort cannot act
as a justificatory shield to guard against constitutional scrutiny. What is of utmost relevance is the
resulting legislative choice”, whereas “the deliberative policy route” followed is not sufficient to
demonstrate constitutional compliance (l’ampleur des débats, des consultations et des efforts qui ont pu
précéder l’adoption d’une mesure législative ne saurait immuniser celle-ci contre le contrôle de sa
constitutionnalité. L’élément le plus important est le choix législatif qui en résulte. Ni le processus de
délibération suivi (…) ne suffisent pour démontrer le respect des exigences de la Constitution) (Attorney
General of Quebec v. A, 2013 SCC 5, para 363, Abella J., dissenting; cf. also Authorson v. Canada, 2003
SCC 39, para 37). The German Federal Constitutional Court has stated that “pursuant to the constitution,
the lawmaker owes only a valid law”, but also pointed out that this view only holds “in principle”, since
the protection of basic rights may eventually require “compensatory” procedural checks in order to make
sure that legislative choices have been sufficiently and openly justified (BVerfG, Judgment of 14
February 2012, BvL 4/10, Professorenbesoldung, para 163 ff.).
3
Wilson v First County Trust [2003] UKHL 40, para 67 (Nicholls); here, “quality of the reasons” means
substantive quality, i.e. cogency of argumentation in terms of content.
9 Legislative Deliberation and Judicial Review 178

considered by several committees” and “fully debated in Parliament”, and noted that the
problem of parental choice being overridden had been addressed “in the course of debate in
both Houses of Parliament”, where “specific mention was made” of parental rights. 4 Similarly,
the proportionality test of the fox hunting ban included the assertions that the law had been
passed “after prolonged” and “intense debate” by a majority of the country’s “elected
representatives”, with pros and cons being “fully expressed in the discussions” that preceded
the enactment, for which “respect should be paid to the reasoned and closely-considered
judgment of a democratic assembly”. 5 In the same vein, upon checking the transcripts of
committee debates, the German Bundesverfassungsgericht (BVerfG) once was persuaded that
a law interfering with the professional freedom did not respond to pressures of large companies
but to the general interest, for arguments about industrial and social policy “were repeatedly
adduced” throughout the legislative discussions. 6
Adverse statements on parliamentary debates appear as well. On one occasion, for instance,
the USA Supreme Court critically observed that “aside from conclusory statements during the
debates by proponents of the bill” (which imposed restrictions on communicative rights), the
congressional record lacked any cogency, and no congressperson or senator “purported to
present a considered judgment” on the legislative prognosis under examination. 7 And yet at
other times we can see divided judicial appraisals of deliberative quality in parliament. For
example, in a famous prisoner’s rights case in Canada, 8 the Supreme Court voided the
contentious section of the Elections Act remarking in passing that debates “offer more
fulmination than illumination (plus d’altercations que d’explications)”, whereas the judge
writing in dissent was certain that MPs had “debated this measure vigorously” in general
session and committee, and had “carefully considered” the advice of the electoral commission
who studied the problem. Such favorable comments—e.g. that a bill was thoughtfully debated
in both chambers, or passed “after exhaustive evidence-gathering and deliberative process”
with “overwhelming bipartisan support” 9—are not seldom to be found in dissenting opinions
challenging the constitutional invalidation of statutory measures.
Admittedly, assessments of legislative debate quality by national courts are few and far
between, but things look different outside state borders, most remarkably under the jurisdiction
of the European Court of Human Rights (ECtHR). The second Hirst ruling is a well-known,
landmark case: in the framework of a proportionality test the Court found fault with the
lawmaking process because the British parliament had not “sought to weigh the competing

4
R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, para 51 (Nicholls).
5
R (Countryside Alliance) v Attorney General [2007] UKHL 52, paras 1, 8, 45, 47 (Bingham); see also
para 157 (Brown).
6
The court agreed that “the lawmaker” was “guided by considerations about supplies and [industrial]
structure policy, and about agrarian and social policy” (and not by influences emanating from pressure
and interest groups), since “such considerations were repeatedly adduced in the deliberations of the
committees participating in the lawmaking process” (BVerfGE 39, 210, 227–28, Mühlenstrukturgesetz).
Cf. BVerfGE 50, 290, 334–35 (Mitbestimmung).
7
Sable Communications of California v. FCC, 492 U.S. 115 (1989) at 129–131.
8
Sauvé v. Canada, 2002 SCC 68, para 21 (McLachlin C.J) and para 164–165 (Gonthier J., dissenting).
Cf. also Attorney General of Quebec v. A, 2013 SCC 5, para 109 (LeBel J.) and para 363 (Abella J.,
dissenting).
9
Shelby County v. Holder, 12-96 (570 U.S., 2013) at 36–37 (Ginsburg J., dissenting). Cf. also United
States v. Morrison, 529 U.S. 598 (2000) at 630 ff. (Souter J., dissenting); or, for Germany, Justice
Schluckebier’s dissent to Vorratsdatenspeicherung (BVerfG 1 BvR 256/08, Judgment of 2 March 2010,
para 322–324).
A.D. Oliver-Lalana 179

interests” and there did not exist “any substantive debate by members of the legislature”.10 A
number of decisions have since followed equivalent reasoning patterns, both for and against
upholding legislative measures. To mention but a handful of cases, the ECtHR has argued that
“the quality of the parliamentary (…) review of the necessity of the measure is of particular
importance” with regard to “the operation of the relevant margin of appreciation”; 11 or has
deemed significant that the “the impugned measure has been the subject of considerable
parliamentary scrutiny”, and there was “a serious debate” before the legislation was adopted,
with Parliament seeking “to weigh up the competing interests”. 12 Also highlighted has been
that the inspected legislative measures “were recently introduced after extensive debate by the
democratically-elected representatives on the social and ethical issues raised”; 13 that there had
been “a detailed” parliamentary debate on the provision upon scrutiny, with the minister
introducing it emphasizing “at some length the extreme sensitivity of the question”; 14 that,
“after consulting the various persons and interest groups concerned”, the parliament decided to
establish a new system which is “the result of comprehensive debate” where “account was
taken of legal, ethical and social considerations”, with the lawmakers basing their decisions
“on general-interest grounds”; 15 or that “extracts from the debates” held before the passage of
the act make clear that lawmakers intended to change the regulatory landscape for the benefit
of “the broader economy”. 16 To avoid misunderstandings, it should be noted that the ECtHR
has by no means suggested that “because a legislature debates, possibly even repeatedly, an
issue and reaches a particular conclusion thereon, that conclusion is necessarily” compliant
with the European Convention of Human Rights; it is only admitting that it takes legislative
debates into account “for the purpose of deciding whether a fair balance has been struck
between competing interests”. 17
At first sight one is tempted to see these assertions as anecdotal obiter dicta, or even as
eccentric moves of the courts—this might explain why they remain generally unnoticed in
mainstream judicial review and proportionality literature. Upon closer look, however, there is
more to them than rhetoric. To realize how much, one has to recall the growing tendency of
courts—epitomized in recent ECtHR practice—to incorporate due lawmaking process
doctrines into the control of legislation. These doctrines are added to the two classic strands of
constitutional review, which concentrate either on the results or on the regularity of lawmaking

10
“There is no evidence that Parliament has ever sought to weigh the competing interests or to assess
the proportionality (…). It cannot be said that there was any substantive debate by members of the
legislature” (Hirst v. UK, ECtHR 6 December 2005, para 79; cf. the separate opinions by Wildhaber and
others and by Tulkens and Zagrebelsky). See also Alajos Kiss v. Hungary, ECtHR 20 May 2010, para
41, where the court uses the same argument unanimously.
11
Animal Defenders International v. UK, ECtHR [GC] 22 April 2013, para 108.
12
Sukhovetskyy v. Ukraine, ECtHR 28 March 2006, para 65. See also Animal Defenders International
v. UK, ECtHR 22 April 2013, para 114 (the Act was enacted “with cross-party support and without any
dissenting vote”, being “the culmination of an exceptional examination by parliamentary bodies of the
cultural, political and legal aspects of the prohibition”), as well as Judge Bratza’s concurring opinion,
para 12. In the same vein, Evans v. UK, ECtHR [GC] 10 April 2007, paras 60 and 86 (the law “was the
culmination of an exceptionally detailed examination of the social, ethical and legal implications of
developments in the field”); but see para 33 (the relevant provisions “did not prove controversial during
its passage through Parliament”).
13
Friend v. UK and Countryside Alliance and others v. UK, ECtHR 24 November 2009, para 50 i.f.
14
Murphy v. Ireland, ECtHR 3 December 2003, para 73.
15
Maurice v. France, ECtHR [GC] 6 October 2005, para 121.
16
National Union of Rail, Maritime, and Transport workers v. UK, ECtHR 8 September 2014, para 89.
17
Shindler v. UK, ECtHR 9 Sepember 2013, para 117.
9 Legislative Deliberation and Judicial Review 180

proceedings, and focus instead on the way legislation has been prepared and justified, with
courts taking the quality of the legislative method or process as a review touchstone and
according constitutional import or weight to the respective flaws or virtues. This goes beyond
verifying that the rules and formal procedures for the valid creation of statutes, as laid down in
constitutions or parliamentary standing orders, have been met. Rather, courts check whether
lawmakers (in the wide sense) have produced a statute with due care and upon due reflection,
leaning on this check to strike down or uphold it. Thus, they may review for process or method
quality as regards legislative fact-finding and goal-setting; prognoses and expected impacts;
analysis of regulatory alternatives; legislative balancing of affected interests; public
participation, pluralism and inclusiveness of viewpoints (to prevent the disregard of minorities
or vulnerable groups); authenticity of the legislature’s choices (to neutralize legislative
capture); or the publicity and documentation of legislative reasons. 18 A court controlling some
of these aspects of a parliamentary law can be said to review it under a “legislative method” or
“process” perspective. It goes without saying that pure process review is extraordinary, and
courts mostly combine it with some material control of outcomes—giving rise to what have
been named “procedural proportionality” tests (Lenaerts 2012; cf. Popelier and van de Heyning
2013). But even in this hybrid form, courts do look to whether a statute was actually grounded
in a proper and transparent way, and thereby obtain at least a supplementary argument for their
judgments.
The above examples can be understood as a subset of process review doctrines. No doubt
the deliberative performance of elected lawmakers presents a daring target for judicial
oversight. Actually, legislative debates in parliament, while being—on paper—a chief piece of
the process of statutory justification, have played a rather marginal part in this procedural or
“legisprudential” shift of constitutional and international case law, which so far has set more
emphasis on the extra-parliamentary stages of that process. As the selected quotations illustrate,
process review has nevertheless reached legislative deliberation writ small, by elected
lawmakers, in committee or plenary sessions. 19 And it is precisely this development, i.e. the
critical focus placed by courts on parliamentary debates, that many legal scholars will deem
intolerable, even if they do not disapprove of process review altogether. Such examples—so
the critique goes—would be no more than a pathology of judicial review. And, as any other
legal pathology, it should be cured or corrected: whatever the proper way to control statutes
may be, it must necessarily dispense with any appraisal of parliamentary debates. Let us have
a nearer glance at this objection.

18
These yardsticks are taken from the German BVerfG’ case law—that of public participation also draws
on the South African Constitutional Court’s rulings on New Clicks (CCT 59/04, para 113) and Doctors
for Life (CCT 12/05 para 121 ff.). See further Oliver-Lalana (2016; 2017).
19
With appellants importantly contributing to this extension. See Kavanagh (2014: 460): in a number of
cases, “barristers have argued that, when deciding whether a legislative measure is proportionate” the
courts should consider “the fact that the human rights implications (…) were not appreciated during
parliamentary debate”. Also Nussberger (2017: 176) notes that process and debate review is mostly
conducted by the ECtHR when the parties justifiably ask the Court to do so. Yet parties’ allegations do
not determine the review outcome. For example, in Lindheim v. Norway, ECtHR 22 October 2012, “the
Government recalled the Court’s deference to democratic processes”, claiming that the controversial
provision “had been the subject of at least eleven proposed amendments”, and that “there had been heated
debate for many years among the leading political parties”, with “all but one of the parties represented
in Parliament” finding “a middle ground” of which the provision “was one important part”; in the
Government’s submission, “this significant political compromise should be taken into account by the
Court” as “an example of democratic deliberation” (para 118). The ECtHR, however, found no evidence
that “any specific assessment was made of whether” the provision achieved a “fair balance” between the
interests at stake (para 128).
A.D. Oliver-Lalana 181

9.2 Debate Review as a Constitutional Pathology

Process review has been challenging constitutional orthodoxy for almost half a century, and
has received, in return, diverse and severe criticism—often unwarranted. This criticism
intensifies greatly against any proposal to insert the deliberative performance of MPs into the
picture. Trying to address all objections would take too long, but for present purposes it suffices
to summarize the standard ones. These concern, mainly, the lacking legal basis of debate review
and the institutional disrespect (towards democracy and separation of powers) that it entails.
Another critical flank has to do with the methodological difficulties of the judicial appraisal of
legislative deliberation—as this does not imply a wholesale rejection of debate review as such,
I will return to this issue later.
As usually construed, the legal mandate of constitutional (or international) courts does not
stretch to the control of legislative debate quality. Constitutions or parliamentary standing
orders may well prescribe debates or readings as a part of the lawmaking proceedings, but set
no requirement as to how or what MPs should discuss during plenary or committee sittings—
far less include those proceedings qualitative criteria against which judges ought to assess
deliberations. Accordingly, there would be no legal basis for judges to require a parliament “to
act with some high degree of deliberateness”: review for such a deliberateness in the
lawmaking process would be “as patently unconstitutional as” a parliamentary act “mandating
long opinions” from a supreme court. 20
The refusal of debate review does not only draw on textual silence, though—in the end,
most courts develop fairly creative doctrines which are, at best, rather remotely linked to the
wording of constitutions. Besides lacking any anchorage in constitutional texts, there would be
strong constitutional reasons not to have judges inspecting or questioning the deliberative
performance of elected lawmakers. Extending judicial review this far—it is objected—runs
counter to paramount constitutional tenets that preclude ascribing weight to debate quality,
namely the principles of democracy and separation of powers. Judges who dare to (overtly)
check whether or not MPs have deliberated seriously or inclusively enough, have satisfactorily
engaged with fundamental rights issues, or have tackled the constitutionally relevant factual
and legal implications of a bill before passing it, 21 enter a “forbidden territory” (Kavanagh
2014), or cross a “constitutional Rubicon” (Joseph 2010). Legislative debates, that is, are
“anathema” (Bryant 2011), a sacred domain reserved to democratically legitimized
representatives: no court can feel entitled to critically examine them, for this implies a
misunderstanding of its institutional role within the legal system. When confronted with
instances of such a practice, one hence has to see them as an unfortunate, pathological exercise
of judicial review. As stressed by dissenters to Hirst, the ECtHR’s majority, in arguing from
an alleged lack of substantive debate by British MPs, exceeded its competences and forgot that

20
United States v. Lopez, 514 U S 549 (1995) at 614 (Souter J., dissenting)—yet referring to legislative
deliberation writ large, not particularly to parliamentary debates.
21
Thus Lücke (2001: 26), who defended the position that MPs are subject to a constitutional duty to
deliberate. Cf. also Appleby and Olijnk (2017: 980 and 978), arguing that, “as responsible constitutional
agents, parliamentarians have an obligation to consider the constitutionality of proposed legislation as
part of a holistic deliberation about the legislation”—though such an obligation would be “imperfect in
many respects”.
9 Legislative Deliberation and Judicial Review 182

“it is not for the Court to prescribe the way in which national legislatures carry out their
legislative functions”. 22
Always revolving around democracy or separation of powers, the opposition to debate
review comes in various guises. In Commonwealth jurisdictions, for example, judicial
assessments of deliberation quality are reproached for violating the doctrine of “parliamentary
privilege” that preserves the autonomy of legislatures and the immunity of their members to
operate without interferences from other branches of government—as established in the UK
Bill of Rights 1689 (Art. 9), “the freedom of speech, and debates or proceedings in parliament,
ought not to be impeached or questioned in any court or place out of parliament”. In other
countries, the mere idea that there could be, on the parliamentarians’ side, any legal-
constitutional obligation or burden to deliberate is likewise rejected as an intrusion upon
congressional self-government with regard to the regulation and application of lawmaking
procedures; which, as a matter of course, is deemed truly detrimental for a democratic regime.
And, to give one last example, it may also be objected that any control of the quality of
legislative debates implies a mistreatment of democratic assemblies thereby equating them
with administrative agencies. 23 These and similar objections seem so patently indisputable in
most legal systems that one can hardly find scholars devoting their time to critically reconsider
them. There exists, in sum, a wide consensus on this point: when it comes to deciding on the
validity of statutes, judges should better refrain from evaluating parliamentary debates—be it
in terms of substantive cogency or of process quality.
I hasten to add that none of this is meant to undervalue the benefits of carefully discussing
laws for a decent constitutional democracy. Enemies of due deliberation standards of judicial
review may quite naturally accord great political relevance to legislative debates. And much
the same holds for courts. As the BVerfG has stated, 24 the people are represented in parliament,
where MPs’ “arguments and counterarguments (Rede und Gegenrede)” on legislation are to be
seriously considered, for public legislative debate and discussion are “essential elements of
parliamentary democracy” that “open up possibilities of striking a balance among competing
interests” and connect “the legal-technical lawmaking process with a substantial will-formation
grounded upon the force of the argument, which enables MPs to take on responsibility for their
decision”. Plenty of similar views could easily be collected from parliamentary scholarship and
case law. But those who assert such views in the abstract try to draw a clear divide between
politics and constitutional law, stressing that the attribution of adjudicative weight to legislative
debate quality crosses the line.
Neither do the aforesaid objections imply that legislative debates be entirely ignored within
constitutional adjudication. Courts very often resort to committee or plenary minutes as an aid
to interpretation, even if only to gain insight into the goals or the meaning of parliamentary
acts. To what extent a net contradistinction between interpretative and review-oriented
consideration of debates can be sustained in practice may be left open. Now the point is that

22
Hirst v. UK, ECtHR 6 December 2005, joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen,
Kovler and Jebens; Judges Tulkens and Zagrebelsky’s concurring opinion was a bit softer: “we note that
the discussion about proportionality has led the Court to evaluate (…) the parliamentary debate (…).
This is an area in which two sources of legitimacy meet, the Court on the one hand and the national
parliament on the other. This is a difficult and slippery terrain for the Court in view of the nature of its
role”.
23
In this vein, yet with regard to the review of the congressional record, see e.g. Board of Trustees of
the University of Alabama v. Garret 531 U.S. 356 (2001) at 376–77 (Breyer J., dissenting).
24
BVerfG 2 BvE 2/09, Judgment of 10 Jun 2014, para 100 (Volksversammlung).
A.D. Oliver-Lalana 183

scholarly criticism levelled at the use of legislative history in constitutional adjudication (and
statutory construction in general) does not prevent courts from invoking genetic, intent-based
arguments. Even where judges have traditionally refused to consult legislative history, e.g. in
the UK and Canada, it is nowadays accepted that, when it comes to protecting basic rights, the
examination of legislative history may place courts “in a better position to understand the
legislation”. 25 But it is one thing to lean on debates for interpretative purposes, and quite
another to assess them and incorporate this assessment into arguments about striking down (or
maintaining) a law. 26
If taken to the extreme, the resulting thesis is that, legally speaking, the quality of
parliamentary debate does not matter, and therefore should never be used as an argument within
the review of parliamentary laws. The rationale is that all statutes, being outcomes of the
democratic lawmaking process (and just because of it) must be legally treated as enjoying one
and the same presumption of constitutional compliance, regularity or legitimacy, regardless of
how virtuous or flawed the deliberative process preceding their passage was—this cannot alter
the constitutional credentials of legislation. 27 It is indeed very likely that a wide majority of
lawyers or legal scholars think along these lines. I wonder, however, whether this position
entails a somewhat formalistic, too rigid an understanding of constitutional law. Tradition
enthusiasts will disagree, but hopefully it will at least be conceded that appeals to constitutional
orthodoxy alone cannot settle the issue, for also the reasons to straw away from the prevailing
view must be pondered. Otherwise reasonableness might be sacrificed for the sake of allegedly
absolute legal dogmas. Perhaps, a good starting point in this respect is to realize that a judicial
focus on legislative deliberation is not meant to intrude into parliamentary competences or to
neglect constitutional texts. It is simply about judges taking a key dimension of the actual
justification of laws into account when deciding fundamental rights cases. Seen in this light,
that courts consider the grounds advanced by lawmakers during legislative deliberations is a
reasonableness requirement if review judgments are to be seen, in turn, as reasonably justified.
This is the gist of my case for the judicial review of debate quality.

9.3 Sketching a Case for Judicial Review of Legislative Debate Quality

Making a general case for extending judicial review to legislative debate is no easy task.
Besides objections about democracy and separation of powers, one should contemplate the
singularities of particular jurisdictions and legal orders. Still, relevant scholarship provides the

25
Wilson v First County Trust [2003] UKHL 40, para 64 (Nicholls).
26
The rejection of debate review is compatible with a range of situations where courts feel legitimized
to seek certain reasons in parliamentary speeches. For instance, when the Spanish Constitutional Court
(TC) checks whether an urgency law issued by the government (a “decree-law”) actually responds to a
pressing need or a social emergency, ministers’ explanations in congress are always a valid piece of
evidence, even if only as to the existence of an emergency and the connection of the law with it—a
proper control can hardly be said to occur, however; see e.g. the dissenting opinion of Judge Asúa et al.
to the Judgment of 24 September 2015 (STC 199/2015).
27
“It is not our place to judge the quality of the care and deliberation that went into this or any other law.
A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted
after years of study, months of committee hearings, and weeks of debate. Much less is it our place to
make everything come out right when Congress does not do its job properly. It is up to Congress to
design its laws with care, and it is up to the people to hold them to account if they fail to carry out that
responsibility” (King v. Burwell, 14-114 [576 U.S. 2015] at 19, Scalia, J., dissenting).
9 Legislative Deliberation and Judicial Review 184

pieces we need to sketch such a case. These pieces can be gathered together into one line of
argument. It runs in five steps—short: culture of justification, reasoned due deference,
constitutional benefits, institutional neutrality, and judicial candor. The argument is just
tentative, but might nonetheless push a little bit for an innovative judicial approach in this field.

9.3.1 A Democratic Culture of Justification

For a start, let us place things within a broader framework. Over the last decades “justification”
has become a pivotal idea in legal culture, jurisprudence and political philosophy. Signs thereof
abound. For instance, an argumentative, post-positivistic paradigm in law has spread across
many systems that emphasizes the justificatory dimension of legal norms and practices, and
steers clear of the formalistic legicentrism which has characterized jurisprudence for the past
two centuries (Atienza 2006). 28 In this context the almost universal diffusion of proportionality
as a constitutional review standard has also been regarded as “a global move toward
justification” (Cohen-Eliya and Porat 2011: 474). Leading moral-political thinkers envisage
the recognition of a basic right to justification as a core trait of democratic societies, 29 and
deliberative democracy theorists point to the centrality of mutual justification and public
exchange of arguments for any political process (cf. Gutmann and Thomson 2004; Mansbridge
et al. 2010). Coincidently, an increasing number of authors vividly defend the dignity of
elected, deliberative legislatures as the ultimate place for discussing and making laws (think
e.g. of J. Waldron’s legislative jurisprudence or R. Bellamy’s political constitutionalism), and
even as capable human rights promoters (Webber et al. 2018). 30 While the spirit and theoretical
background of all these trends diverge, commonalities about the significance of giving reasons
for legislation cannot be overlooked. I venture to say, however, that it is E. Mureiniks’ (1994)
notion of a democratic culture of justification that best captures the underlying theme. Roughly,
in a culture of justification legislators would be bound by a duty to offer both “political
justifications to the electorate for their laws” and “legal justifications in terms of the values set
out” in the constitution; this is much more than justifying “why one policy is better than another
since it is also a justification of why the policy is consistent with the legally protected rights of
those it affects”, with this justification being addressed not only to citizens but also to the courts
(Dyzenhaus 2015: 425–26). When coining this felicitous notion, Mureinik was urging their
fellow jurists to overcome a non-democratic viz. authoritarian legal reality. But the essential

28
See further Chap. 7 in this volume.
29
Forst (2014: 155) defines democracy as “a political practice of argumentation and reason-giving
among free and equal citizens, a practice in which individual and collective perspectives and positions
are subject to change through deliberation and in which only those norms, rules, or decisions that result
from some form of reason-based agreement among the citizens are accepted as legitimate”.
30
See also Devins and Fisher (2015). On the dispute between representative and deliberative accounts
of legislatures, see e.g. Gargarella (2014: 42–43): “even assuming a rosy picture of how legislatures
work, the representative system remains profoundly unattractive from a democratic perspective; (…) our
present legislatures are structurally incapable of representing the multiplicity of views and voices
existing in contemporary societies. As a consequence, we—meaning those who are convinced about the
merits of having an inclusive, deliberative democracy—have few reasons to celebrate the changes that
are seemingly taking place in contemporary constitutionalism. To be more precise: there is nothing
particularly exciting in the fact of having contemporary constitutionalism slowly moving away from its
traditional picture of pure judicial dominance and towards a different one, where legislatures prevail”.
A.D. Oliver-Lalana 185

traits of what he called a “culture of authority” may well be translated to any authority-oriented,
“ultra-positivistic” account of (constitutional) law.
A hallmark of the culture of justification envisioned by Mureinik is that when it comes to
controlling government decisions, including legislation, courts should investigate the reasons
adduced by those who took them first. In this account, assessing the legal or constitutional
justifiability of a law without examining how it was actually grounded would imply not taking
legislators seriously as primary decision-makers. This refutes the “outcomes-are-all” dogma
(see e.g. Mead 2012) and the almost exclusive judicial interest in legislative results which has
long dominated constitutional law. 31 Judges acting within a culture of justification are expected
to pay attention to the procedural dimension of lawmaking, which is particularly important in
pluralist societies marked by political and moral disagreement. As Dyzenhaus (1998: 35, my
italics) has put it: “the determination of the content of substantive criteria must always at least
to some extent be a question of correct process”. That is why a democratic, constitutional
culture of justification squares very well with process review doctrines; 32 but it also shares
common ground with the post-positivistic, argumentative turn in legal studies. Both question
reverence to legal authority, and both recognize that sometimes legalistic dogmas may and
ought to be relaxed in order to keep the law within reasonableness. It is of course possible to
deny that we live in a legal culture of justification, but then I fail to see how one could explain
that, in different degrees, virtually all actors in the legal theatre of modern constitutional
systems are bound to give reasons for their decisions—all, except lawmakers. This does not go
to say that overly stringent requirements must be applied to the justification of legislation; yet,
a culture of justification definitely calls, at least, for softening formalistic (judicial)
presumptions about parliamentary lawmaking.

9.3.2 Due Deference as Reasoned Deference

Another cornerstone of a culture of justification, as concerns the control of statutes, is that

judicial deference to government decisions cannot be taken for granted, but must be earned,
which leads us to the thorny issue of due deference. In the broadest of terms, a controlling court
ought to restraint itself and owes deference to democratic legislatures and their products
whenever it is not certain about something which might lead to a verdict of
unconstitutionality—or in certain cases even when the court’s constitutional conception simply
opposes that of lawmakers. 33
For judges, to defer is not merely to endorse another institution’s decision or view but to
accept it because there are good reasons to do so, be they reasons of epistemic superiority or
of political legitimacy. Such reasons are second-order reasons, and not merit-reasons—in
Razian terms. Their validity and strength may be either abstract or related to the legislative
case (or both). In the first variant, deference is due regardless of any other particular
circumstance, as usually happens with presumptions of constitutionality. According the same

31
“In a culture of justification (…) authority serves only as a starting point for the constitutional analysis,
(…) a necessary but not a sufficient condition for legitimacy and legality. Rather, the crucial component
in the legitimacy and legality of governmental action is that it is justified in terms of its ‘cogency’ and
its capacity for ‘persuasion’, that is, in terms of its rationality and reasonableness” (Cohen-Eliya and
Porat 2011: 475).
32
See e.g. Fredman (2015); cf. also Sandalow (1977: 1185 ff.).
33
See further Sieckmann (2016); Young (2014; 2010); Rivers (2008; 2006); or King (2008).
9 Legislative Deliberation and Judicial Review 186

presumption to all laws, however, means closing eyes to paramount differences that could bear
on an interference with fundamental rights or norms—it is in this connection that deference
may be labelled formalistic or blind. 34 The second variant, by contrast, does not rely on
empirically unsupported presumptions, dogmas, or “stereotypes” (cf. Berger 2013: 498–99);
instead, it takes institutional, case-specific aspects into account. On this reading, judicial
deference cannot be treated as an all-or-nothing matter, 35 and the value of constitutionality or
legitimacy presumptions may turn on the concrete circumstances of the legislative case, most
notably on the quality of the process of legislative justification and hence also on the quality
of parliamentary debates.
The snag about this—some could say—is that parliamentary debates are not a source of
legislative justification, but are merely rhetorical, empty wordiness; legally and constitutionally
a pointless battlefield. In a nutshell, MPs would be “political people delivering political
speeches in a political forum” for a “political audience” (Steele 2017: 10). A twofold reply lies
at hand, though. For one thing, this negative depiction actually says nothing against the claim
that parliamentary debates belong to legislative justification—which has an inherently political
face. In their contributions, our representatives may well combine political and non-political
elements, including legally and constitutionally relevant ones. As Roach (2015: 417) puts it,
“addressing the hard proportionality questions in committee and in the seventh and eighth
paragraphs of the minister’s speech on second reading should not fetter the ability of elected
members to make other forms of argument”. For another thing, as I have tried to show
elsewhere (Oliver-Lalana 2014; 2018), the value of parliamentary debates as a source of
legislative justification can neither be discounted nor assumed beforehand.36 Establishing this

34
Cf. Fullilove v. Klutznick, 448 U.S. 448 (1980) at 550–51 (Stevens J., dissenting): “it is true that there
was a brief discussion on the floor of the House, as well as in the Senate, (…) but only a handful of
legislators spoke, and there was virtually no debate”; this “perfunctory consideration” falls short for “an
unprecedented policy decision of profound constitutional importance”; “although it is traditional for
judges to accord the same presumption of regularity to the legislative process no matter how obvious it
may be that a busy Congress has acted precipitately, I see no reason why the character of their procedures
may not be considered relevant” to the judicial decision on the constitutionality of the legislative
product”. With regard to the interpretation of laws, cf. e.g. Rosen (2017: 138): “our doctrine of statutory
interpretation should be informed by what really goes on in legislative assemblies, rather than by abstract
idealised accounts of legislation”; “our choice of interpretive approach should not be based on wholesale
accounts of the value of legislation, but on an individual evaluation of statutes and the circumstances of
their enactment”.
35
“The occasion for deference is the court’s acceptance that its judgement is more likely to be correct if
it relies on some other authority’s assessment of some relevant matter. It is about relative institutional
competence. In respect of any question, it might seem that the court is competent or not. How could
deference be a matter of degree? The answer lies in the confidence the court can place in the competence
of the other body. (...) the degree of deference means the extent to which the court will demand that the
authority puts procedural resources into answering the relevant questions reliably, and exposes that
process to judicial scrutiny. To defer is not simply to accept another person’s assessment, it is to accept
that the other person’s assessment is sufficiently reliable” (Rivers 2006: 206–207). Cf. Ross (2014);
King (2008).
36
Challenging juristic commonplaces about the legislative process, Cohen (1956: 396) stressed that “all
is not force and symbolic sham, and that reason does and can play a significant role” in lawmaking; as
long as people “at times respond” to it, rational argument “ought to be employed in the legislative forum
if for no other reason than that it is sometimes effective”; moreover, we ideally conceive of a legislative
body “as a representative deliberative assembly”, whereby “the fact that in practice the ideal has not
been realized is no reason why the deviations from the ideal must be accepted”; a “courtroom lawyer
would undoubtedly be shocked at the suggestion that the practice of law ought to be geared to the
A.D. Oliver-Lalana 187

value is a task that cannot be done in the abstract but upon examining the legislative case. Only
this examination makes it possible to correctly utilize debate quality as a due deference
modulator. To paraphrase—somewhat freely—a Waldronian notion, courts should defer to
legislatures not just because there are elected, but also because they deliberate. If this is the
point, then courts should be expected to verify that legislatures have, in fact, deliberated.
Obviously, this understanding of due deference may acquire plural connotations depending on
jurisdictions—e.g. human rights courts like the ECtHR may find in the principle of subsidiarity
an incentive to conduct debate review (procedural subsidiarity). But the claim that judicial
deference must be earned remains intact.
When considering all this, two caveats are in order. First, I am not suggesting—at least not
now—that debate quality should be an autonomous review yardstick, or that (unjustified)
lacking deliberation suffices to void a statute. Parliamentary debate quality remains within a
small niche of constitutional adjudication (cf. Hooper 2015). It is one single factor among
others, and one which plays a part, in principle, only when adjusting due deference—more on
this below (Sect. 9.4). This can hardly be a serious disturbance of the lawmaking work or an
intrusion upon parliamentary autonomy, especially if one has a constitutional culture of
justification in mind. As a second word of caution, the link between debate and process review
must be preserved. If process review is alien to a legal system, it makes little sense to plea for
extending the judicial focus to plenary or committee deliberations. Practically seen, the former
is a prerequisite of the latter. Yet, by the same token, if a constitutional or international court
already applies process checks, there exists no apparent rationale to exclude parliamentary
debates as review object.

9.3.3 Constitutional Benefits

A formalistic presumption of legitimacy becomes a bad thing as soon as it is converted into a

dogma and is brandished to defeat any reasons for debate review, i.e. for an empirically-
informed, institutionalist approach to the control of statutes. But are there actually any such
reasons? Unless it is shown, for instance, that a judicial focus on legislative debates would
promote or enhance vital values enshrined—or implicit—in democratic constitutions, we may
be better off without it. So the point is whether debate review can bring about constitutional
benefits that counterbalance the drawbacks pinpointed by the pathology objection. Now I will
put apart the question whether, or to what extent, it can be advantageous to fundamental rights
holders if judges review for due legislative deliberation. I shall concentrate only on democracy-
related constitutional goods, for it is concerns about them that dominate criticisms of debate
review.
When thinking about judicial standards of due lawmaking process including due
parliamentary deliberation, one finds at least three major democratic rationales—and hence
three potential gains: legislative transparency or publicity (which are allied in turn with
political accountability and representativeness); legislative authenticity (vis-a-vis legislative
capture and unfair special interests); and legislative inclusiveness (as a way of giving voice to
minorities and of protecting the pluralism of perspectives). All three values are interwoven;

standard set by the shysters and ambulance-chasers, merely because shysterism and ambulance-chasing
persist. There should be no difference with respect to those who view the legislative process in practice
in the darkest possible light”. Cf. also Luce (1922: 316), arguing that “the common charge that nearly
all of debate is a waste of time, useless garrulity, vain mouthing, is based on a complete misconception
of both the purpose and the nature of legislative argument.”
9 Legislative Deliberation and Judicial Review 188

they underlie the legitimacy of process review at large, and fit in with most normative
conceptions of democracy. Taken altogether, they form, in a manner, the constitutional-
democratic part of any case for debate review. If courts, when controlling laws, keep an eye on
the transparency, authenticity and inclusiveness of legislative justifications in parliament, the
usual charges of overriding democratic choices levelled at the judiciary loose strength; above
all, because the main beneficiaries of those values—as promoted by debate review—would
ultimately be the citizens themselves. Debate-oriented doctrines would force lawmakers to
reveal their cards not only before the judges, but also before the citizenry and public opinion. 37
Moreover, such a democracy-enhancing judicial focus on legislative deliberation in
parliament could be a convenient supplement to the current practice of “rationality” review—
another usual label for process review. In a sense, rationality review scholars tend to discount
the role of elected legislators, laying emphasis on extra-parliamentary stages of the lawmaking
cycle, which are often dominated by ministerial bureaucracies. Yet, only debate checks make
it possible for judges to appreciate whether MPs really assume responsibility for legislative
choices and justifications. 38 Whether these checks effectively help to improve the practice of
parliamentary deliberation, e.g. by fostering the discursive side of legislatures, may of course
be disputed. Advocates of the varied family of process review doctrines often claim that courts
thereby contribute to better lawmaking, most outstandingly in democratic terms—as a ECtHR
judge has phrased it: process review is “democracy-enhancing” (Spano 2014). Both with regard
to process review in general and to debate review in particular, this is an empirical question on
which no conclusive data are available (cf. however Bar-Siman-Tov 2015). But it is not
implausible, I think, to expect at least some improvement in the actual practice of legislative
deliberation as a consequence of debate review. Anyway, side-effects like this are not totally
indispensable to my approach. One cannot forget that, in the last analysis, the purpose of
judicial review, rather than making other branches progress, is to control the validity of
legislation against the yardstick of basic rights or norms—without usurping the legitimate
decisional margins that constitutions afford to parliaments. This leads to the next piece of my
argument.

9.3.4 Institutional Neutrality and the Variable Weight of Democracy as a Formal

Principle

While the previous point was mainly addressed to adversaries of the judicial review of
legislation, this one appeals, rather, to its proponents, who are repeatedly accused of being
counter majoritarian and favoring juristocracy over democracy. If debate review, challenging
widespread preconceptions, turns out to be a way of honoring elected lawmakers, a court
integrating it into its judgments would see its legitimacy strengthened. The so-called theory of
formal principles offers a framework to better grasp this claim.
A hackneyed objection to principle theories of law is that they are not institutionally neutral,
but tend to diminish, more or less intentionally, the decisional competences of democratic
parliaments in favor of courts as prime or supreme guarantors of fundamental rights. To meet
the objection, democracy can be redefined as a formal or institutional principle to be included

37
See Mengel (1997: 271 ff. and 326 ff.), as well as Mureinik (1993).
38
Here I borrow from the German BVerfG, which once controlled a broad decisional leeway granted to
the legislature by pushing for evidence that “the parliamentary majority took responsibility” not only for
the result enacted but also “for its justification”, with MPs’ contributions on the floor being considered
a valid benchmark (BVerfGE 79, 311, 345, Staatsverschuldung).
A.D. Oliver-Lalana 189

by default into the judicial weighing of constitutional principles. Construed as a formal

principle, democracy prima facie requires that lawmakers take, as far as possible, all binding
decisions for society (Alexy 2007: 550; 2014: 516). Thus, any court reviewing legislation
should consider this formal principle when balancing material principles (rights or collective
goods), or when applying proportionality in the wide sense. But this poses an obvious problem
since formal principles qua principles also have a weight dimension, and weight is a gradable
magnitude. Formerly, some principle theorists gave a constant weight to democracy in their
models of proportionality and balancing, which arguably parallels a formalistic presumption
of democratic legitimacy in constitutional law—inasmuch as a constant weight conceptually
relies on democratic pedigree, but is not empirically warranted. As the theory of formal
principles became more sophisticated, however, its supporters seemed to agree on the variable
or flexible weight of democracy within balancing. Commenting on the intricate relationship
between constitutional rights and the formal principle of democracy, for instance, even Alexy
(2012: 331) has acknowledged that this principle plays a crucial role in cases of epistemic
(factual and normative) uncertainty and “can adopt different weights in different situations”.39
Yet, a further problem follows, for ascribing a variable weight to democracy forces us to
specify what exactly makes this weight vary. Principle theorists have suggested a series of
candidate factors, ranging from the strength of the democratic legitimation of the legislative
measure under review, through the flawlessness of its making process, to the greater or lesser
parliamentary majority voting for it on the floor. 40 Though these theorists do not visibly
contemplate that the actual quality of debates could be a factor in determining the concrete
weight of democracy, they could possibly endorse it, conceding that “judges may rightly ignore
much parliamentary debate”, but “should listen to those parts” of it which tackle the relevant
questions posed by proportionality analysis (Roach 2015: 418). The other side of this coin is
whether the weight of democracy should only count as a bonus pro legislatoribus or also as a
malus against them. While courts seem to prefer the former option, they ultimately do
symmetrical review (i.e. both good and bad debate quality may matter). Therefore, as far as the
theory of formal principles aspires to adequately reconstruct judicial practice, it must account
for the exercise of debate (and process) review both for and against lawmakers.

9.3.5 Judicial Candor

As noted, whether debate review would positively bear on the quality of legislative deliberation
is unclear. Yet, even discounting empirical effects, an overt focus on legislative debates would
at least increase transparency on the part of the courts. Provided that parliamentary engagement
with rights somehow affects their judgments, judges carrying out debate review would simply

39
Though Alexy’s theory focuses on constitutional adjudication by courts—and only marginally
addresses democratic legislation—, his strategy to legitimize the judicial review of statutes includes the
claim that an adequate notion of democracy comprises “not only decision but also argument”, which
makes democracy deliberative; “deliberative democracy is an attempt to institutionalize discourse as far
as possible as a means of public decision making. For this reason, the connection between the people
and the parliament must not only be determined by decisions expressed in elections and votes but also
by argument”, i.e. “representation of the people by the parliament is, at the same time, volitional or
decisional as well as argumentative or discursive”, which “shows that representation and argumentation
are not incompatible (Alexy 2005: 579).
40
Cf. e.g. Raabe (1998); Borowski (2013); Klatt (2016); or Sieckmann (2016); and also above note 12
(Animal Defenders).
9 Legislative Deliberation and Judicial Review 190

be disclosing a relevant motive which inclines them either to uphold or to void a law. In other
words, debate review would stimulate judicial candor. 41 Let me explain further. We have seen
that courts not only stress the political significance of legislative debate but also resort to
parliamentary minutes for interpretative purposes; well, sometimes this is only a stone’s throw
away from debate review.
Take for example the Colombian Constitutional Court. This Court attaches “great
importance” to the very “concept of legislative debate”, and claims that the aim of the rules on
lawmaking laid down in the constitution is to potentiate democracy by rendering
“congressional debate ample, transparent and rational”.42 Besides this, it carefully demarcates
debate from voting—the latter being “nothing else than the conclusion” of the former—, and
contends that votes must be cast “on the basis of discussions” and “upon sufficient
illumination” (ilustración) on the side of the MPs acting in the parliamentary “committee or
chamber”. “The exposition of diverse, eventually competing ideas” or criteria—the Court goes
on—, the “serious confrontation among them”, the examination of alternatives, and the
“collective, reasoned and well-grounded” evaluation of a bill’s repercussions are inherent to
legislative debate. So far, so good. But, all of a sudden, the line between law and politics seems
to blur, for deliberation prior to voting is held “indispensable to legislate”, not only in theory
but also constitutionally. The constitution—it is concluded—requires that both debate and
voting, as essential parts of lawmaking, be correctly carried out, for otherwise the resulting law
might not be valid.
This Court, and the constitutional provisions it can resort to, certainly present a special case.
To flesh out the candor claim, however, it is sufficient if there exists a tacit judicial proclivity
to reward good legislative deliberations or to penalize bad ones. And precisely this implicit
spirit has not been alien to the actual practice of several courts. Writing in a personal capacity,
for instance, a former BVerfG justice admitted long ago that it was easier for the court to void
a law as disproportionate or arbitrary when the parliament had not engaged with the legislative
issue intensively or had not offered plausible justifications—and the other way round (Bryde
1982: 328). Moreover, once courts delve into legislative history for interpretive purposes—as
they often do—, and in view of the political value they attach to debates, it would be strange if
they did not make any appraisal of deliberations. As a UK law lord confessed on one occasion,
having “looked at what was said in Parliament, it is difficult to put it out of mind”.43 So, even
if initially guided by interpretative purposes, “judges are inquisitive creatures”, and it is
“against every natural instinct for a judge not to address the policy objectives and reasons
advanced to support” a bill; a “palpably deficient” statutory justification might hence turn out
to be “highly probative” when doing proportionality tests (Joseph 2010: 590–91). In other
words, the boundary between interpretive and evaluative uses of parliamentary minutes might
be like a line in the sand. 44 If, as some judges acknowledge, there can be “not only an explicit,
but also an implicit procedural review” (Nussberger 2017: 164), it is probable that debate
quality has some influence on their decisions. And then the question emerges of what the better
option is: refusing debate review on paper, while doing it somehow intuitively, or trying to

41
Whether judicial candor is always desirable, or not, is another question: cf. e.g. Idleman (2005).
42
Corte Constitucional de Colombia, Judgments C-872/2002; C-222/1997; C-1147/2003; for an
overview of Columbian constitutional case law on the so-called “legislative acts”, see Durango (2012).
43
Lord Browne-Wilkinson, quoted in Joseph (2010: 591).
44
As Hooper (2015: 371) observes, “perceived attempts by the British courts to evaluate parliamentary
proceedings are treated with hostility. However, it is not entirely clear that courts avoid such evaluation
of parliamentary activity in the context of human rights adjudication”.
A.D. Oliver-Lalana 191

rationalize hunches and—as yet—unpalatable considerations. Under this perspective, debate

review looks barely intrusive as contrasted with ordinary judicial practice, for it does no more
than “interrogate assumptions that courts may otherwise rely upon in exercising restraint”, and
help them “do so in the appropriate circumstances”, so that they defer to lawmakers “on the
basis of reality, and not unarticulated or unquestioned assumptions” (Sathanapally 2017: 75). 45
Concerns about the separation of powers and democracy have surely an influential
magnetism, but, as we see, there is much more to the issue. Should debate review only pose
problems and have no constitutional benefits, one could spare any further consideration. The
thing nevertheless is that, besides objections, advantages must be counted as well, particularly
if we regard the matter through the lens of Mureinik’s culture of justification. So perhaps we
have to figure out how to strike a balance before being too hasty about taking sides with
constitutional formalists. The interplay between advantages and drawbacks should lead, rather,
to some halfway solution, for neither a total refusal of debate review nor a too-demanding
judicial doctrine on due legislative deliberation seem satisfactory. 46 Yet, even if one pauses
averseness to debate review, the case I have outlined still remains too abstract. In order to give
it some further concretion, we may lean on the few studies on how judges actually deal with
the quality of parliamentary deliberation in human rights cases.

9.4 Making Sense of Debate Review

Although relevant case law is often murky as to the precise role that courts assign to the quality
of parliamentary deliberation, several reconstructions are available in the literature which help
to define what room there is for debate review within the judicial control of legislation. What
unites these reconstructions is the finding that parliamentary deliberation occasionally operates
as one among the pool of factors contributing to adjust judicial deference to legislative
decisions, i.e. as an argument which is coupled with a higher or lower intensity of substantive
review, or motivates a greater or lesser margin of appreciation afforded to lawmakers. Case
law studies have also yielded some sets of criteria that courts may use—or are encouraged to
use—in assessing parliamentary deliberations. Finally, interested scholars have noticed
problems, ambiguities or inconsistencies in the deployment of this kind of scrutiny.
In general, doctrinal accounts of process-oriented review do not pay much attention to the
judicial assessment of parliamentary discussions, 47 and tend to put these on a level with non-

45
Last, but not least, making debate quality a regular review criteria would prevent judges from assessing
it only when this reinforces their own ideological positions, as it sometimes happens with process review
writ large. For example, when the US Supreme Court struck down the federal marriage law denying
equal benefits to same-sex couples, an eminent adversary of the judicial use of legislative history
discredited the majority opinion for “concealing from the reader” the reasons put forward by the Act’s
defenders during legislative deliberations, and for not even troubling “to paraphrase or describe them”
(United States v. Windsor, 12-307 [570 U.S. 2014] at 2707, Scalia, J., dissenting).
46
See for instance Kavanagh (2014: 455 ff.), defending parliamentary engagement with human rights as
a deference-increasing factor; this would be the “halfway house”—adopted by the UK courts—between
evaluating the sufficiency of the reasons advanced during the course of debates, and eschewing all
reference to debates and simply presuming that legislation is the product of detailed deliberation without
inquiring whether such deliberation has taken place as a matter of fact. Cf. below Sect. 9.5.
47
As for national courts, this is only natural, for in most jurisdictions such assessments are rare—as
noted in Sect. 9.1 it is in the ECtHR’s case law where we find most instances of the argument from
debate quality.
9 Legislative Deliberation and Judicial Review 192

parliamentary stages of lawmaking. Yet, a handful of authors have specifically addressed the
argument from legislative deliberation in constitutional adjudication, mostly with a focus on
the recent case law of the ECtHR or the UK House of Lords (Supreme Court)—the two major
test fields for debate review so far. These authors take advantage of current scholarship on
process review but suggest additional tools to analyze and structure judicial evaluations of
parliamentary debate. Several basic distinctions used for dealing with process review writ large
can indeed be applied to our theme. 48 First, two types of highly sensitive cases have been
identified where (process and) debate review is likely to be conducted: cases related to “socio-
economic rights” or complex choices in social or economic policy; and “dilemma-cases”
involving fundamental ethical-moral issues (Gerards 2017: 146 ff.). 49 Another handy
distinction is whether courts draw positive or negative inferences from debate quality, i.e.
whether this quality operates as a bonus or as a malus for lawmakers (Kavanagh 2014: 456),
with the former being more frequent than the latter. Finally, we find typologies based on the
level of detail or specificity of the appraisal of legislative deliberation, which is held to be
mostly “impressionistic” and not “systematic” (Sathanapally 2017: 74 ff.).50 Besides this, some
author has tried to organize how the ECtHR may relate parliamentary deliberation quality to
the decisional leeway granted to legislatures, distinguishing between “clear”, “implicit”, or just
“possible” connections between (positive or negative) inferences and legislative debate (Saul
2015: 753 ff.). Finally, a distinction has been made between two roles or “technical purposes”
of the argument from deliberative quality in international human rights adjudication. This
argument may be used—in connection with the principle of subsidiarity—to define the extent
of the state’s margin of appreciation, or also—within the framework of a proportionality test—
to modulate the level of substantive scrutiny performed by the court (Saul 2016: 3). In either
case debate quality is a factor which courts use to adjust deference when examining a state’s
interference with rights: it does not present a stage on its own in the judicial reasoning (on
proportionality or subsidiarity) but a supplementary layer of judgment. 51 Being stronger than
an obiter dictum, the argument from legislative debate hence is supportive, not conclusive.
Always coming in combination with preexisting strands of review, it helps judges to decide on
uncertain aspects of the case at hand or to build a more robust justification for their final
decision—yet, no court would strike down a law only because it was ill-debated. 52 In sum,
inasmuch as they are embedded in the judicial review of the process of legislative justification,
debate quality checks function like other procedural controls, providing courts with an

48
See particularly Gerards (2017).
49
Cf. also Nussberger (2017: 163–64); Arnardóttir (2017: 25). The range of cases where process review
is applied in national jurisdictions is much broader; for Germany, see e.g. Oliver-Lalana (2017).
50
This distinction correlates with those between “broad-brush” and “check-list” (Brems 2017: 35 ff.),
and between “retail-level” or “wholesale” (Ross 2014: 2035–36) evaluations of the lawmaking process.
51
According to Sathanapally (2017: 55), debate quality is not a reason for “restraint in itself, but within
judicial restraint on institutional grounds”, leading “to amplify (or, alternatively, mute) the respect” that
courts give to legislatures.
52
Cf. e.g. Chung (2016) or Masterman (2017: 265). However, procedural review is sometimes used as
a substitute for material analysis, in which case parliamentary deliberation becomes a “decisive factor
to conclude that a fair balance has been struck” (Popelier and van de Heyning 2017: 19, referring to
Animal Defenders and Shindler). Also in this vein, see Saul (2016), referring to Parrillo v. Italy as “an
example in which reference to parliamentary process appears to consume the rest of the substantive
analysis”. Only in exceptional scenarios the review of the process of legislative justification replaces
that of the legislative outcome. The autonomy of process review is of no concern now; cf. e.g. Arnardóttir
(2017: 10–11), Popelier and van de Heining (2017), or Gerards (2017).
A.D. Oliver-Lalana 193

argument to grant a greater or lesser margin of appreciation to the legislature, or to endorse or

reject a given legislative premise within the material analysis of the merits of the case.53
This sort of explanatory tool-kit, while certainly shedding light on the emerging judicial
review of legislative debates, falls short in one central respect. It purports to discern when or
how judges resort to deliberative quality as an argument, whereas it remains to be seen why
parliamentary debates (should) qualify as good or bad in constitutional adjudication. Recall the
ECtHR’s famous Hirst ruling: how does a court of justice decide whether the discussions held
in committee or plenary sitting were sufficiently “substantive”? Operative yardsticks are hence
needed which judges can employ to establish the (procedural) quality of parliamentary debates.
Attentive scholars have elicited a range of working criteria from the very practice of courts.
None of them can be precise enough to avoid problems of application (see below Sect. 9.5),
but certain vagueness is ineludible for any standard of constitutional control. For the sake of
brevity, consider only four proposals. One draws on the UK case law (following the passage
of the Human Rights Act in 1998) to concretize the standard of “parliamentary engagement”
with rights. 54 Applied to British legislative debates, this standard could be split into three major
benchmarks: (i) “was there a legislative focus on the human rights issue?; (ii) was there active
parliamentary deliberation on that issue?; and (iii) were the opposing views fully represented
in that deliberation?” (Kavanagh 2014: 463 ff.). These questions are not supposed to be any
sort of regular test, nor do judicial checks for parliamentary attention, active discussion, or
extent of participation always go hand in hand. They would just be criteria that UK courts have
eventually leaned on when reviewing primary legislation. Another reconstruction shows that a
court—namely the ECtHR—may value, when it comes to parliamentary committee work, (i)
the approach taken to legislative rights review, (ii) the range of issues considered, and (iii) the
thoroughness of this consideration; whereas judges inspecting plenary sittings would reward
(iv) the level of detail in the debates and (v) the breath of aspects covered (Saul 2015: 764–65).
The next two proposals, while keeping an eye on British case law, are more normative in
character. The third model (Lazarus and Simonsen 2015) draws on five criteria to establish the
degree of due judicial deference: (i) the representative conditions in which legislative debate
takes place; (ii) the quality of the consideration given to the views of rights bearers; (iii) the
evidence presented to the legislature of the necessity of the measure that restricts or violates
rights; (iv) the courts’ own democratic mandate, institutional role and its place in the
constitutional culture and system; and (v) the nature of the affected right. Recalling the need to
adapt general yardsticks of deliberative quality to parliamentary debate, the last approach
(Sathanapally 2017; cf. 2012) suggests courts to take into consideration: (i) the time and effort
devoted to discussing a given piece of legislation; (ii) the advancement of public vs. private,
special-interest reasons; (iii) the availability of relevant policy information and data during
deliberations; (iv) the diversity of viewpoints conveyed through parliamentary speeches; and
(v) the readiness of MPs to change their minds as contrasted with unjustified inflexibility. Of
course, these four arrays do not exhaust the potential criteria which a court might follow when

53
Thus, debate review renders a “compensatory” function that is typical for process-oriented judicial
doctrines. In general, procedural review may compensate for the impossibility to review the end contents
of a law, i.e. the outcomes or results of the lawmaking process, or for the low intensity of review that
courts, in the absence of further yardsticks, apply to these results. Furthermore, when courts perform a
proportionality analysis, a procedural scrutiny provides a counterweight to their limited capacity or
readiness to assess the content of legislative premises (e.g. diagnoses and prognoses) in very complex
regulatory scenarios (Oliver-Lalana 2016: 277–78).
54
See right below the model by Lazarus and Simonsen (2015: 389 n. 25 and 396 ff.), which draws on
the notion of “meaningful engagement” developed by the South African Constitutional Court.
9 Legislative Deliberation and Judicial Review 194

judging the quality of legislative deliberations,55 but this selection suffices for the purpose of
exemplification.
Unlike at the national level, where one finds few voices supporting legislative debate
review, in the context of the international protection of human rights commentators seem to
welcome it as a valuable development in the judicial control of legislation, at least in light of
the principle of subsidiarity. However, they have also pinpointed weaknesses of the procedural
approach which directly affect the practice of debate review. One of them has to do with the
risk that, by resorting to due lawmaking process criteria, courts reduce too much the intensity
of substantive checks and thereby forsake their duty to protect fundamental rights—a classic
objection to process review. In this vein, some wonder whether judges, “by prioritizing
parliamentary debate over evidence-seeking”, would really live up to their mandate (Popelier
and van de Heyning 2017: 21). Another problem is the erratic, unpredictable way the ECtHR
handles its process-oriented examination of laws, which also affects its scrutiny of
parliamentary deliberation. As Gerards (2017: 143, 159) puts it, “the Court’s procedural review
is not (yet) consistently applied”,56 and relies mostly on a “pick and choose” approach. In the
ECtHR context, inconsistencies pave the way for suspicions of the use of “double standards”
between contracting parties (Popelier and van de Heyning 2017; 2013) or of a “variable
geometry” (Çali 2017) in the judicial enforcement of rights depending on the reputation of the
concerned legislature. Worse still: it is denounced that process and debate review might have
sometimes been used to please particular states such as the UK, whereas this review approach
is avoided in analogous cases affecting other countries. Even the ECtHR members have
commented on this: in a dissenting vote to Animal Defenders concerns are aired as to how a
law can be deemed proportionate only because the UK Parliament found it so after debating on
it. For the dissenters, it was “extremely difficult” to understand such a double standard in the
context of the European Convention, whose baseline exigencies “should be equally applicable”

55
For instance, Brems (2017: 38) defends that “both the democratic concern with proper deliberation
and the procedural fairness focus on accuracy can be integrated into the expectation of substantive
debate”. In the US context, Tushnet (2009) suggests another evaluative option as regards parliamentary
construction of constitutional norms: “congressional performance is adequate, and congressional
capacity to engage in good constitutional analysis is demonstrated” when lawmakers referring to
constitutional questions speak “in constitutionalist terms”, i.e. “connect their constitutional concerns and
analyses to some broader ideas about constitutionalism, the separation of powers, and the rule of law,
make reference to relevant constitutional provisions, and the like. The criterion, that is, is whether those
participants who deal with constitutional questions appear to be thinking about those questions in the
right way, with the Constitution and constitutionalism in mind”; cf. also Evans and Evans (2006). Further
criteria can be found which lean e.g. on evidentiary law (Chung 2016), or on doctrines about the judicial
review of administrative lawmaking (Reicherzer 2006). Cross-party or qualifiedly majoritarian support
in parliament (cf. Borowski 2013; and above note 12), or whether bills have been importantly modified
as a consequence of debates (BVerfGE 50, 292 – Mitbestimmung) could also be added to the list. Sharp-
eyed readers will surely miss criteria pertaining to the dialectical quality of deliberation: on this, see
Atienza’s piece in this volume (Chap. 8) as well as Oliver-Lalana (2018: 56 ff. and 60 ff.).
56
Popelier and van de Heyning (2017: 17–18 and 12–13) reproach the ECtHR for being “ambiguous as
to the relationship of procedural rationality review with the margin of appreciation. In Sukhovetskyy [see
above note 12] the Court stated that, ‘the extent of the State’s margin of appreciation depends on the
quality of the decision-making process’. If procedural rationality review is part of the proportionality
test, however, it should work the other way around: the Court first determines that the margin of
appreciation is broad (…) and then turns to procedural rationality review. In this way, the Court
introduces procedural rationality review as a tool for scrutiny, securing respect for fundamental rights
when wide deference is granted to the national authorities. However, in Animal Defenders (…), the
margin of appreciation was narrow and still the Court turned to procedural rationality review”.
A.D. Oliver-Lalana 195

throughout all states parties. 57 Finally, and more importantly, commentators point to the “lack
of precision” in the deployment of the review of parliamentary process (Saul 2016: 1087), with
the ECtHR’s jurisprudence being confusing with respect to “both the technical purpose for
assessing parliamentary process and the extent to which it is relevant to other considerations”.58
As we see, even scholars who do not call into question the practice of debate review as such
make important reservations as concerns its uneven, ambiguous or inconsistent deployment. 59
Certainly, the characteristics of an international human rights jurisdiction, as well the ECtHR’s
peculiar style of argumentation, do not help in this regard. 60 But such shortcomings may be
said to affect most areas of constitutional case law, and seem quite normal when a new judicial
review doctrine emerges. As has been observed, developing a “uniform set of standards that
could be applied systematically to assess deliberation would be a significant exercise” which
is arguably “beyond what is feasible for a court to develop” through its rulings alone
(Sathanapally 2017: 75). What could be needed, then, is a little bit of academic illumination.
And in this task we should perhaps call for something more than consistency: further issues are
likewise important for debate review to progress.

9.5 Developing Debate Review Further

Abstracting now from those jurisdictions where hints of debate review are observable, there
are a number of questions to be answered if the procedural qualities (and eventually also the
content) of parliamentary deliberation are to play a meaningful part in the regular constitutional
control of legislation. To begin with, the judicial appraisal of legislative debate can be said to
inherit most of the methodological difficulties affecting process review at large (see Oliver-
Lalana 2016; 2017). To give just one example: when and at which stage of its reasoning a court
employs procedural arguments to decide on a basic rights case remains difficult to predict—
and the same goes for the activation of deliberative checks—, for judicial interest in the

57
Animal Defenders International v. UK, ECtHR [GC] 22 April 2013, joint dissenting opinion of
Ziemele, Sajo, Kalaydjiyeva, Vučininć and de Gaetano. On the strategic use of process-oriented
arguments in judicial review see e.g. Ross (2014: 2028 ff.), and above note 45.
58
Also in this critical line, Popelier and van de Heyning (2013: 243) challenge the ECtHR’s thesis that
“the extent of the State’s margin of appreciation depends on the quality of the decision-making process”,
and plead for using this criterion “not determine the margin of appreciation” but “as a tool for scrutiny
in case of a broad margin of appreciation” (cf. also note 56). For Gerards (2017: 159), the ECtHR should
apply process review “more consistently” and draw “clearer consequences from procedural findings”.
59
The same applies to the judicial use of legislative materials: “What further complicates this enquiry –
and perhaps even compels it – is the fact that the engagement with parliamentary materials by courts
does not follow any form of pattern, whether real or imagined. In fact, this unsystematic treatment is the
core of potential problems. (…) there has been no attempt by any court or by parliamentarians to reach
a constitutional settlement about the proper scope of this practice” (Hooper 2015: 364).
60
“A ‘bric-a-brac’ approach is typical for the Court’s argumentative style and (…) it is hardly to be
expected that the Court would suddenly start relying on a highly structured and dogmatic argumentative
approach that would clearly stipulate in which types of cases it will rely on procedural arguments and
which value it will attach to such arguments” (Gerards 2017: 159). To be sure, the ECtHR cannot be
fully equated with national constitutional or supreme courts (think e.g. of the importance of the principle
of subsidiarity or of the variety of legal traditions under this jurisdiction); yet, divergences between the
ECtHR and national courts do not imply very different ways of dealing with proportionality (see Popelier
and van de Heyning 2013).
9 Legislative Deliberation and Judicial Review 196

lawmaking process always turns on the particular legislative circumstances. 61 As debate review
presents its own bundle of singularities, such methodological uncertainties intensify. Let me
highlight five of them, which might be called the special weight; connection; substance;
differentiation; and complexity problems. Being just a selection, it hopefully serves to illustrate
the methodological conundrum before us. 62
First, although parliamentary debates—both in committee and on the floor—, as part of the
process of statutory justification, are natural candidates for the procedural review of legislation,
they must be given a specific place in this review, and be treated as a separate object of judicial
scrutiny. If dissolved within the whole lawmaking process, their distinctiveness as an arena for
legislative reasoning vanishes. 63 In a democratic culture of justification the basis for assigning
constitutional weight to the quality of parliamentary debates cannot only be that these belong
to the lawmaking process; the rationale is, rather, that those who participate in debates are
elected legislators, citizens’ representatives holding direct political legitimacy. 64 Therefore the
value of their deliberative performance (irrespective of how it is measured) cannot be equated
with that of extra-parliamentary contributions to legislative justification; it must weigh more. 65
And this gives courts the difficult task of distinguishing the relative importance of MPs’
deliberations as contrasted with other stages and elements of the lawmaking process.
Yet, parliamentary debates cannot be correctly appraised in isolation from these other stages
or elements. Roughly speaking, judicial deference is premised upon two major, often
intersecting second-order reasons: the superior democratic credentials of lawmakers, and the
better position of legislative institutions (in terms of resources, information, expertise, etc.) to
regulate controversial or complex societal issues in a rational way, with the latter usually
reflected in the travaux préparatoires that form part of the lawmaking process. 66 One should
hence expect that a relevant connection exists between these preparatory works—and even
between the inputs from the public sphere—and parliamentary discussions. As legislative
debates are not a “self-sufficient” source but a “concentrate” or distillate of the statutory
justification (Oliver-Lalana 2013), a court cannot limit itself to plenary or committee sittings
but must approach them in the light of other legislative materials. Current accounts of debate

61
The only way out of the activation problem would probably be to review the legislative method
including deliberation by default, using process and debate quality as a baseline standard.
62
That statutes can be passed without any proper deliberation by MPs also raises doubts of method in
our context, such as whether a complete absence of debate should count against lawmakers; whether a
good pre-parliamentary process might “heal” this deficit; whether courts should assess eventual
justifications for it (e.g. on grounds of urgency or efficiency), etc. But for present purposes I confine
myself to scenarios where the extent or “corpus” of deliberations is rich enough for a qualitative
inspection by judges—as is likely to happen with socially salient pieces of legislation restricting
fundamental rights.
63
For the ECtHR’s case law, see Saul (2016: 745–46), stressing the need to overcome “holistic accounts”
(that put parliamentary, judicial, and administrative processes on a level) and to study instead “how the
Court engages with the particularities of each type of domestic authority”.
64
On the representative nature of legislative argumentation, see e.g. Oliver-Lalana (2005: 135 ff.). Cf.
recently Jackson (2016).
65
This might be a reply to Popelier and van de Heyning’s (2017: 21) doubt as to whether the ECtHR
does wrong in “prioritizing parliamentary debate over evidence-seeking”. Consider further that, as long
as the role of debate review is limited—as a modulator of due deference or of the intensity of scrutiny
of specific legislative premises—, the risk of under protecting rights diminishes.
66
As regards an international human rights judiciary, subsidiarity would be the third main reason for
deference. Of course, the democratic value of laws (as regards transparency, authenticity, inclusiveness
or pluralism) may also be inferred from legislative works and documents.
A.D. Oliver-Lalana 197

review might not sufficiently allow for this connection—whereby criteria like the “availability
of relevant policy information” during deliberations go in this line. Suppose, for example, that
MPs introducing a bill repeatedly invoke a ministerial impact assessment or a consulting body’s
report on the relevant case law by way of justification. Arguably, the sole fact that “reference”
or “mention” was made of such studies or consultations has no significance per se: the court
cannot accord any positive value to these debates unless it verifies, at the very least, that MPs’
claims and legislative materials match. And this presupposes that judges examine the content
of argumentation, so that the procedural and the substantive aspects necessarily intertwine to
some extent.
A third critical aspect concerns precisely the slippery divide between “process” and
“substance” in the review of debate quality. I feel that process-based yardsticks, when applied
in practice, cannot be fully detached from the substantive analysis of the arguments advanced
by MPs. On the theoretical level, it is possible to suggest varied sets of quality criteria which
largely avoid entering into the assessment of debate content (Sect. 9.4), but it is not obvious
that these criteria can be applied without letting in at least some substance. 67 I wonder, actually,
whether courts should focus more on the content of arguments when reviewing legislative
deliberations. Most authors deny this and plea instead for keeping a purely procedural
orientation, but others leave room for debate review as a negative control of the soundness of
the legislative reasoning that is elicited from parliamentary speeches.68 Whilst I have nothing
to say against such a negative control—quite the reverse in fact—, one should be clear about
which approach is to be followed by reviewing judges. Legislative argumentation is inherently
plural and contradictory, and debate in parliament is an archetypical forum for rival substantive
stances. Imagine a debate scoring well in procedural terms where bad arguments “trump” good
ones by getting the majority of votes: should courts accord any constitutional weight to that
debate? Or should they settle who had the best reasons and adjudicate on this basis? In the
latter case, judges would be simply controlling legislative reasons as advanced during debates
and this, if the approach is not clarified, entails the danger of arbitrary cherry-picking. To
neutralize this risk, judges should make a previous reconstruction of the content of debates in
the light of the entire process of statutory justification—which may be quite a burdensome task.
By contrast, if it is only the procedural properties of deliberations as a whole that matter, we
meet with a new problem, for courts might add an extra—but undeserved—credit to legislative
premises which were actually not discussed. In this regard, the main problem of debate review
is one of lacking differentiation.
Statutory justification is a multipart endeavor which may include a broad range of premises
and reasons—which can in turn be assessed both in substantive and procedural terms. And it
is uncertain to which of them courts should defer (or not) as a result of debate review. Overall

67
The same goes for process review writ large: while it focuses on the “how” of justification, i.e. on the
justification as a process (how were reasons produced?), not as a product (what reasons were adduced?),
I think that a clear-cut contradistinction is hard to sustain in practice (Oliver-Lalana 2016; 2017). By this
I do not mean that process review is normally “mixed”, “substance-flavoured” (Brems 2017: 35), “semi-
substantive” (Coenen 2009), or “semi-procedural” (Bar-Siman-Tov 2011), but that the very “procedural”
side of the review has substantive implications. Moreover, as noted earlier, it is somehow
counterintuitive that courts inspecting legislative debates can totally refrain from even contemplating the
cogency of arguments.
68
Contrast e.g. Sathanapally (2017), Lazarus and Simonsen (2015) or Fredman (2015) with Kavanagh
(2014). The quality criteria identified in Sect. 9.4 mostly focus on procedural aspects, but include hybrid
yardsticks such as the “thoroughness” of the consideration given by MPs to human rights issues (Saul
2016).
9 Legislative Deliberation and Judicial Review 198

appraisals of quality leave this question unanswered since they use to take deliberations as if
they were a compact block, and do seldom concentrate on particular justifications within them.
As the judgments cited in Sect. 9.1 show, debate quality is mostly deemed relevant in general,
but is rarely linked to concrete problems—think e.g. of an epistemic uncertainty about the
reliability of a legislative prognosis. In this connection, it would be advisable for courts to
move towards a more differentiated model where the formal principle of democracy, via debate
review, could operate, not as a single principle but as a cluster of principles correlating with
different margins of legislative discretion. 69 If so, the significance of debate quality would
depend on the properties of the legislative premises at hand. Indeed, the formal principle of
democracy is cross-cutting and can feature in any stage of proportionality tests. 70 As any
process-based judicial doctrine, debate review hence prompts the question of which elements
of the justification of a statute may (or must) be subjected to procedural checks as a
compensation for not reviewing—or for reviewing more leniently—their content. The answer
may vary considerably, ranging from empirical and normative aspects of fact-finding to the
entire statutory justification. In a sense, the cogency of any legislative premise, be it (more)
empirical or (more) normative in nature, can be controlled this way (Oliver-Lalana 2016: 143–
44). 71 With a focus on process review writ large, some authors have conceived fairly detailed
schemes that order relevant variables (such as types of legislative facts, levels of authority, or
levels of expertise) to decipher what degree of deference is owed to what kind of legislative
premises in what scenarios or situations; 72 a similar exercise could also be carried out in
relation to the special status of parliamentary debates. Another connected issue is whether there
could be degrees of intensity in the review of debate quality, so that the rigor and extent of the
judicial appraisal of deliberations is adapted to the role this quality plays in the court’s
reasoning (cf. Saul 2016). And this, since quality is a matter of degree, leads in turn to the

69
Commenting on different variants of institutionalism in judicial review, King (2008: 435) observes:
“perhaps the greatest need in this field is for the refinement of the principles and factors of restraint that
have so far been proposed. It is necessary that we unpack such ideas if they are to serve as guiding
standards. If they remain so vague, it is not clear that we have in fact lessened the problem of excessive
judicial discretion. The more concrete they are, the better we can structure judicial discretion and direct
argument to the crucial issues”. See further Afonso da Silva (2011: 250 ff.) or Araiza (2013: 878 ff.).
70
Rivers (2008; 2006); Arnardóttir (2017); Sathanapally (2017); Kavanagh (2014); Chung (2016). As
Saul (2016) notes, reference to elements of parliamentary process as a source of information can occur
at all four steps: while it is typically with balancing proper that judges have “the greatest room to
determine what is relevant and it is here that a parliamentary process (or elements therein) can most
readily and clearly be valued in its own right”, judicial “reference to elements of parliamentary process”
may serve in other ways too, e.g. to help courts “understand the pressing social need” for an interference.
71
“The basic principle for inclusion of a consideration [of parliamentary engagement with the issue at
hand] in the [judicial] evaluation appears to be something like the following: the consideration should
have the potential to support or detract from the strength of the state’s reasons that its limitation has
achieved a fair balance (…). Within this context of fleshing out the balancing exercise for a particular
case, assessment of the quality of parliamentary process could feature. The rationale could be that there
are steps that can be taken within a parliamentary process that can add to or detract from the strength of
the reasons provided by the state. Following this logic, the sort of activities within a process that could
be relevant should flow from the types of reasons that are given for the limitation” (Saul 2016: 1091).
72
See for example Araiza (2013), claiming that the more legal the issue, the less deference is due. Cf.
also Rivers (2007: 186–87; 2008); King (2008); Roach (2015: 410); Klatt (2016); Bickenbach (2014);
or Chan (2013). I wonder whether the formal principle of democracy, conveniently strengthened by
intensive and inclusive parliamentary deliberations, might even substantiate some sort of legislative
prerogative as to the construction of fundamental rights, so that courts must defer more to the lawmakers’
assignment of weights to competing constitutional arguments or goods.
A.D. Oliver-Lalana 199

question of how courts should handle different levels of deliberative quality. In view of the
broad assessment criteria identified to date, for example, it may be hard to settle whether MPs
have debated so well (or badly) that their performance has to be accorded some positive (or
negative) weight in the assessment of the merits of the case—recall the adjectives we find in
the ECtHR’s case law: “serious” or “substantive” debate; “lively” discussions; “exceptional”
examination; “specific” assessment; “considerable parliamentary scrutiny”. 73 A solution would
be that judges limit themselves to the “most egregious” instances of failing or brilliant
legislative deliberation, as has been suggested for process review (Goldfeld 2004: 370, 387–
88). Still, even an agreement on the extremes can be problematic.
As mentioned, this is not an exhaustive list of problems, but it suffices to highlight a decisive
gap, which is my last and more general concern: there exists no well thought out method which
courts may lean on to deal with legislative deliberations, i.e. to reconstruct the justification of
a statute from plenary and committee debates and to assess their quality. Available scholarly
accounts certainly address some methodological questions, thus contributing to the refinement
of judicial practice. However, they seem to overlook the complexity entailed by the
reconstruction, analysis and evaluation of parliamentary debates as legislative justification, 74
and lay emphasis, rather, on identifying judicial references to debate quality and the possible
criteria underlying these. As long as tools are lacking to cope with this complexity, assessments
of the deliberative performance of parliaments in justifying legislation remain essentially
unreliable. So far, the overall qualitative remarks we can find in the case law leave largely
unclear how courts examine or deal with the corpus of debates. 75 At best, their appraisals result
from the careful reading of sitting protocols or minutes, but this may be too feeble a basis for
a constitutional review standard. Inspecting legislative debates, reconstructing their content,
and identifying their process qualities involve much more. 76 One may well be satisfied with an
overall use of the argument from debate quality, or assume that judges must not enter into
details about how they survey parliamentary debates; yet, even to reach a wholesale conclusion,
they should rely on some theory of legislative argumentation in parliament. And such a theory
is still at a very early stage of development. 77

73
See above Sect. 9.1, and also Saul (2016). Actually, one of the reasons why legislative deliberation is
usually regarded as an unfeasible object of review is that ascertaining “in terms of constitutional law
whether the parliamentary debate has been intensive and open enough” would provoke “permanent
controversy” Meßerschmidt (2000: 850).
74
A remarkable exception is Sathanapally (2017: 74), who stresses that “it is not a straightforward task
to systematically assess multi-participant deliberation on even the most basic deliberative criteria”, and
also considers empirical research on the quality of parliamentary deliberation.
75
Cf. e.g. Masterman (2017: 269), holding that “a court’s assessment of the quality of the legislative
process will necessarily remain impressionistic, rather than forensic”.
76
Elsewhere (Oliver-Lalana 2018) I have sketched a sort of model for the evaluation of debates which
comprises four qualitative layers: argumentation extent; argumentation structure (“internal” legislative
justification); dialectical correctness; and plausibility (which may in turn be assessed both procedurally
and substantively). On whether legislators should follow the same patterns of justification as courts (as
Marcilla suggests in Chap. 8 in relation to proportionality), or should draw, rather, on legislation-specific
models, cf. e.g. Evans and Evans (2006) and Appleby and Webster (2013).
77
It is somehow striking that the topic of legislative deliberation in parliament remains largely unnoticed
in legisprudential literature. If the current theory of legislation really wants to give the study of
lawmaking its rightful place in legal studies, then it should not dispense with elected legislators’
contribution to the justification of laws. Philosophical, Waldronian-like attempts to restore the dignity
of legislation, as well as conceptions of the legislature as a reasoning body capable of deliberate action
(cf. Ekins 2018) should be accompanied by an empirically informed research on the actual practices of
9 Legislative Deliberation and Judicial Review 200

In that connection, any debate review advocate faces a dilemma. When claiming that courts
should take deliberation quality into account, even if only to adjust deference to legislative
choices, one should outline methodological guidelines which courts may eventually lean on
when approaching parliamentary minutes—as well as legislative history and records—as a
source of argumentation. But the complexity of this task is so great that one wonders whether
it is worthwhile for both interested scholars and judges to work in this direction. At the end of
the day, if the argument from legislative debate quality is but a small piece within the judicial
review of statutes, why not better discard it at a stroke and avoid these complications?
This is certainly an option. But it should not be forgotten that problems of method are always
at the heart of all strands of constitutional control of laws, so they alone cannot be the pretext
for rejecting judicial checks on debate quality. Moreover, as the procedural review of
legislation is likely to expand in coming years, 78 it is not implausible that debate checks will
expand as well, rising the occasion for us scholars to dispel methodological uncertainties. Thus,
in the last analysis, constitutional orthodoxy seems to remain the principal reason for rejecting
debate review. Inasmuch as one acknowledges—as any court must inevitably do—that elected
lawmakers are the most legitimate actors in a democratic legal system, it might nonetheless be
time for a reconsideration. That a complete neglect of their deliberations be the right way for a
court to honor them seems, at the very least, a fairly strange contention.

9.6 Concluding Remarks

This chapter’s aim was to explore whether the quality of legislative deliberations in parliament
should be a relevant argument within the constitutional review of statutes. In most jurisdictions
it is not: how elected legislators argue about the laws they enact has been traditionally ignored
by courts reviewing for the compatibility of statutes with constitutional rights and norms. Yet,
this judicial indifference is somewhat of a puzzle, for it seems to imply a message (“it does not
matter at all how well or badly bills are debated by citizens’ representatives”) that does not fit
in well with the legitimacy framework implicit in advanced legal systems, where legislatures
are supposed to pass laws upon due reflection. Such a message echoes, rather, the pervasive
skeptical belief that MP’s discussions are a purely rhetorical arena with no bearing on the
constitutional justifiability of legislation. Unsatisfied with this (mis)conception, I have outlined
a humble case for legislative debate review which tries to address concerns about democracy
and separation of powers that are raised by the scrutiny of parliamentarians’ involvement in
the justification of laws. The core of my case is that presumptions of constitutionality of
legislation are a matter of degree, and can be stronger or weaker depending on circumstances
of the legislative case, particularly on the quality of parliamentary deliberation. This claim
surely sounds untenable from the perspective of constitutional formalism, which prioritizes

legislative argumentation. Otherwise legisprudence will end up falling into the same trap of abstractness
as mainstream legal scholarship and contribute to maintaining a commonplace prejudice against flesh-
and-blood legislators—which would be odd enough for legisprudence.
78
As some experts have pointed out—with an eye on process review at large—, due legislative
deliberation is crucial for anyone trying to evaluate the actual performance of lawmakers, so even though
it “is not fully recognized” as yet, it will “certainly gather further momentum” (Meßerschmidt 2016:
377). In this regard, some scholars even make recommendations to state actors and lawyers involved in
constitutional litigation as to how to demonstrate deliberation quality before “skeptical courts” or to
defeat “unsubstantiated judicial presumptions” about the credibility of the legislative record (Ross 2014:
2036, 2105).
A.D. Oliver-Lalana 201

legislative authority over any empirically informed consideration of the actual performance of
lawmakers. However, the claim is not extraordinary for a legal culture of justification. Within
this culture, judicial deference to legislation is not only grounded upon electoral credentials or
majoritarian voting but also on deliberateness, and this necessarily calls for some judicial
examination of whether and how a constitutionally relevant measure has actually been debated
by those who pass it. Translating this abstract thesis to the real practice of constitutional
adjudication is nevertheless not a minor challenge. Although attentive scholars have started
reconstructing the argument from debate quality and the role it plays in the process-oriented
control of legislation, a number of methodological issues must still be addressed if the appraisal
of legislative deliberation is to be meaningfully incorporated into judicial review. Conceded,
this appraisal poses a method conundrum. But if process review doctrines are hoped to promote
values such as transparency, inclusiveness, or authenticity, they must be extended and adjusted
to legislative argumentation in parliament. In this regard, fears about an impingement on the
proper functioning of democratic assemblies are not warranted. For courts, placing a focus on
parliamentary deliberation is a proof of interest in legislators and constituencies—and hence in
democracy—, not an attack on them. That this interest may shift into vigilance should not be a
problem: in the end, like any form of constitutional review of legislation, this emerging doctrine
is doomed to oscillate between respect and disrespect for elected lawmakers.

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Chapter 10
Special Interest Legislation and Legislative Capture

Klaus Meßerschmidt

Abstract To date special interest legislation (SIL) is terra incognita to European legisprudence. While
Public Choice Theory and North American studies of Law and Economics are largely recognized, their
impact on the theory of legislation is very limited. In this chapter, 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. 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. Thus, opponents of SIL do not originate
exclusively from the circles of believers in the neutral role of the state, but also from the neoliberal critics
of the welfare state who emphasise the inseparable relationship between state intervention and vested
interests. 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.
Although there is no explicit ban on SIL, limitations arise from the restrictions on special, individualised
legislation 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 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 and dispel fears of post-democracy.
Keywords Economic Impact ∙ Legislative capture ∙ Lobbying ∙ Public choice theory ∙ Special interest
legislation

The question is not whether a problem

exists, but what to do about it.
OECD on lobbyism 1

10.1 Introduction

This chapter is on honest leadership and open government, if I may borrow the language of the
US legislator, 2 and the vulnerability of government to lobbying, legislative capture and special
interest legislation. For some observers legislative acts, because of their distributive impact,

Klaus Meßerschmidt ()

University of Erlangen-Nürnberg, Department of Tax Law and Public Law
Lange Gasse 20, D-90403 Nürnberg (Germany)
email: [email protected]

1
OECD (2012: 18).
2
The US legislative package of 2007 bears the name “The Honest Leadership and Open Government
Act” (121 Stat. 735).
10 Special Interest Legislation and Legislative Capture 206

appear as a subtle form of legal robbery, reminding us of Saint Augustine’s disturbing question
of how to distinguish kingdoms from great robberies. 3 There is no doubt that legislation can
degenerate into an instrument of rent seeking and thus distort perceptions of the politico-
economic system. 4 Yet can we imagine any legislation that does not privilege some interests
and discriminate against others? One could even suggest that, having sacrificed many
fundamentals of traditional statehood to globalisation and civil society, special interest
legislation forms the backbone of the postmodern state. As an antidote, the insertion of a culture
of justification into legislation is recommended. 5 Unfortunately, the initially clearly established
relationship between the democratic ideas of participation, accountability and responsiveness
has faded in the following years.

10.1.1 Current State of Research

Special interest legislation (SIL) 6 is terra incognita to legisprudence. 7 While many legal
scholars and experts agree that lobbyism8 exists and has considerable impact on legislation it
is rarely treated as a phenomenon that merits closer consideration. This is despite lobbying now
being a multi-billion dollar industry in the USA 9 and having a significant role in EU capitals
and within the EU (as indicated by an ever-growing number of lobbyists). 10 Possible
explanations for this unfortunate reluctance are, in my view: the highly politicised nature of
the debate; the firm belief in the sovereignty of law; a rejection of the morally unpleasant
business of lobbyism; avoidance of undue exposure to an inherently sensitive issue; and the
general difficulty of dealing with an interdisciplinary subject. In a word, lobbyism is nothing
to shout about. The widespread disregard of this issue by academia, however, has meant that it
has been left largely to political pamphlets and the popular press, 11 with the principal exception
of Public Choice Theory and North American studies of Law and Economics.
The US debate in political science, economics and legislation studies 12 sets an example for
a serious analysis of SIL, which goes beyond the standard definition of lobbying as “seeking

3
De Civitate Dei, IV.4.
4
Krueger (1974: 302).
5
Mureinik (1993: 40). I thank Daniel Oliver-Lalana for drawing my attention to this source. For further
references see Dyzenhaus (1998 and 2015); for a more restrained assessment see Shapiro (2002).
6
This contribution builds upon earlier studies published in German: Meßerschmidt (2013) and
Meßerschmidt (2015).
7
Even a praiseworthy recent handbook on legislation is almost silent on lobbyism and SIL, see Karpen
and Xanthaki (2017). Some valuable, though short, remarks can be found in the contributions of Patricia
Popelier, Wim Voermans and Felix Uhlmann.
8
Definitions of lobbyism differ, but do not vary too strongly, cf. OECD (2012: 22–26).
9
Huefner (2017: 129).
10
On Brussels see https://transparency.eu/lobbyistsinbrussels; on Berlin see
https://www.lobbycontrol.de/wp-content/uploads/lobbyreport-lc-2017-web-1.pdf (both last accessed 3
January 2018).
11
Even in the reputable newspaper Neue Zürcher Zeitung a recent headline (March 8, 2018) reads:
“Lobbyisten öffnen Kleptomanen die Tür zum Weissen Haus” (Lobbyists open kleptomaniacs the door
to the White House).
12
See, most recently, Huefner (2017), dedicating almost 100 pages out of 573 to lobbying and related
topics.
K. Meßerschmidt 207

to influence decisions made by public office holders or officials”. 13 This debate, for instance,
investigates the conditions and impact of SIL. The classical papers of Stigler (1974) on the one
hand and Posner (1971; 2005; 2014) on the other explain regulation by economic self-interest
and show the detrimental impact of regulatory entry barriers on competition. Furthermore,
Downs’ political theory of democracy (Downs 1957), Olson’s logic of collective action (Olson
1971) and Public Choice Theory in general are cornerstones of an approach to legislation and
regulation, which takes into account bargaining procedures, 14 legislative capture, 15 and transfer
effects of legislation. Such models portray interest groups as supplying resources and votes in
exchange for the policy and constituency services that legislators can provide. 16 Putting it
bluntly, “legislation is ‘sold’ by the legislature and ‘bought’ by the beneficiaries of the
legislation” (Landes and Posner 1975: 877). Meanwhile, as a matter of routine legal scholars
accuse legislators of “passing laws for the benefits of corrupt and special interests”, acting at
their worst as “mercenaries” (Croly 1909: 319–320, 325–327) and insist that “we must close
off the means of access for outside actors to affect government conduct outside the political
process” (Frohnen and Carey 2016: 236). 17 Surprisingly, none of these renowned scholars or
their followers 18 have faced reproach for discrediting the political system of the United States.
Against this backdrop, the lone voice of Jeremy Waldron has complained that, “our
jurisprudence is pervaded by imagery that presents ordinary legislative activity as deal-making,
horse-trading, log-rolling, interest-pandering, and pork-barreling – as anything, indeed, except
principled political decision-making” (Waldron 1999: 1–2). This might be correct for the
United States, but it is certainly not true of most European countries where legal scholars, in
general, are priests rather than heretics. However, mistrust aids in gaining deeper insight into
the nature and extent of lobbyism.
It may be argued that these “cynical” theories, which rely on an application of economic
thinking to the field of politics and represent an extension of economic reasoning, suffer from
a “focusing illusion” and are more revealing of the economic method than of legislation.
Nonetheless, many adherents of the economic analysis have not confined their contributions to
explaining and elaborating their model, but have also looked for an evidence base.19
These theories are interesting in yet another regard. Whereas economic markets work, at
least partially, by harnessing the self-interest of the homo oeconomicus 20 to deliver collectively
beneficial ends, most studies on the economic theory of democracy draw a rather bleak picture
of the political market. In a universe of rational self-interest, voters endeavour to elect
candidates who will look after their particular interests and politicians, in turn, seek re-election
and therefore act in ways to win votes. This model of political decision-making, which
perfectly fits the idea of democratic pluralism, is thwarted by the influence of special interest

13
Gay (2016: 162).
14
See, e.g., Baron and Ferejohn (1989); Fréchette et al. (2005); Volden and Wiseman (2007).
15
See, in detail, on regulatory capture Carpenter and Moss (2014). The editors define regulatory capture
as the following (p. 13): “Regulatory capture is the result or process by which regulation, in law or
application, is consistently or repeatedly directed away from the public interest and toward the interests
of the regulated industry, by the intent and action of the industry itself.“ Although their focus is on
agency regulation, which is even more prone to capture than legislation, many findings are applicable to
legislative capture as well.
16
Denzau and Munger (1986: 96).
17
Both quotations are a century apart.
18
See, in particular, Peltzman (1976); Peltzman (1989); Becker (1983).
19
The empirical performance, however, is debated, see Farber and Frickey (1986/87: 895).
20
The rational man of economic theory.
10 Special Interest Legislation and Legislative Capture 208

groups that, for reasons explained by Olson, have a stronger voice than average voters and
large groups with diffuse interests. 21
This leads to the next problem: regulators shall act as representatives of the public interest
and are simultaneously driven by self-interest. They “want to keep their jobs and to command
more resources, so they are consistently driven to exaggerate the importance of what they do
and to look for ways to expand the scope of this mission” (Surowiecky 2004: 262–263). This
setting provides no explanation as to how the political process serves the common good
although it could instigate investigation into the existence and implementation of the public
interest.
This condensed summary does not imply that the SIL theory of legislation meets overall
approval overseas nor does it deny its presumable shortcomings such as the neglect of non-
rational behaviour and ideology as driving forces of voters and politicians and/or regulators.
Moreover, the idea of one-interest-only voters and one-interest-only constituency candidates
or parties is an obvious simplification. Imagine a rich bourgeois bohemian who sympathises
with the libertarian cultural policy of a leftist party but sides with the fiscal policies of a
conservative party. In this case, there is no clear preference and hence no predictable deal
between voters and politicians, but a conflict resulting in a difficult balance of interests. In
modern societies with growing role-variety, this conflict emerges as typical. On the other hand,
however, the programs of political parties increasingly resemble a ‘grab bag’. These findings
do not necessarily challenge the premises on which the economic model of democracy is based,
but suggest a more differentiated application. The economic theory of SIL may be over-
simplified also inasmuch as it emphasises the infiltration of government by vested interests. It
could be argued that SIL results from a two-way process by which corporate interests try to
influence regulation while at the same time regulators attempt to shape special interests. 22 This
reciprocal influence may sometimes end up in a symbiosis. Applying decision theory23 and
game theory 24 to regulation could provide further insights. The objective of my contribution
here, however, is not to defend or criticise economic theories, an endeavour beyond my scope
of expertise; my ambition is the more modest one of introducing to European legisprudence
arguments, common in economic theory and the US debate on regulation, and inviting readers
to consider them more closely.
Against the background of the dominance of US economic and political theory abroad, the
influence of these theories in Germany has been surprisingly weak. 25 Although this may be
partially explained by the characteristics of the US political system, which differs from the
German and most European systems by the independent role of Congressmen and Senators (so
that a direct application of US research is impossible), the main reason is the opposition of

21
This is especially the case because they are intensely interested and small, and thus suffer less from
the free-rider problem. Another reason is rational ignorance of voters. On this topic see, among others,
Denzau and Munger (1986: 99 ff.) with further references.
22
On their role as political entrepreneurs Wagner (1966); Cohen (2006); Riker (1982); Riker (1986);
Schneider and Teske (1992). Political entrepreneurs also can use the unorganized group to countervail
interest group pressure.
23
See Elhauge (1991/92: 101–109).
24
See on games theory and contract theories of legislation, Nourse (2016: 53–62).
25
It is enough to compare the abundant American literature with the sizeable German literature.
K. Meßerschmidt 209

American pragmatism and German idealism. 26 Or should I say better ‘hypocrisy’? Whereas
most American scholars aim to examine facts, their German colleagues prefer to state what
should exist. Consequently, SIL has escaped the notice of many economics theorists, and most
legal scholars flinch from what has hitherto been seen as a disreputable topic. Only a few
political scientists have tackled the issue in Germany but even then, they have not filled the
lacuna in studies on interest group influence. Correspondingly, the European Association of
Legislation has only once dealt thoroughly with lobbyism in Bennett’s paper on US legislative
theory. 27 Unfortunately, this valuable contribution left almost no mark on German
legisprudence, which revolves around the “flood” or “torrent of law” 28 and other less
controversial topics. Moreover, Germans, in particular, may be frightened of the historical
burden of anti-pluralism in extremist political thinking. However, it must be borne in mind that
the role of the “faction” has been criticised in the seminal Federalist Papers 29 and by quite a
few renowned political thinkers 30 long before the notorious Carl Schmitt branded the conflict
of interest as disintegration of parliamentary “government by discussion” (Schmitt 1926: 9–
13). It is not justifiable, therefore, to analyse legislation and not consider economic impact and
the power of stakes. 31
As compared to the German debate, research on the representation of interests within the
European Union appears more advanced. State-of-the-art contributions point out that the
European multi-level system strengthens interest groups, 32 particularly multinational firms and
organisations.
However, the interest in SIL 33 may have passed its peak even in the United States 34 as
behavioural economics 35 weakens interest in theories based on classical economic thinking.
Some scholars argue that ideology has a stronger impact on legislation than special interest.36
This may strike one as possibly true but does not mean that special interests are no longer

26
See Lege (1998) on Peirce. In Germany, the school of thought established by Rudolf von Ihering in
the late 19th century emphasising the importance of interest conflicts and the struggle over rights (“Der
Kampf ums Recht”) and so-called “Interessenjurisprudenz” could not prevail against positivism.
27
Bennett (1996). Besides the ambiguous report of de Menezes Soares and Camilo de Santos (2009),
Bennett merits notice. It holds some valuable insight but also demonstrates gallows humour.
28
See, among others, Karpen (2009: 108–110).
29
James Madison’s Federalist No. 10: “By a faction, I understand a number of citizens, whether
amounting to a majority or a minority of the whole, who are united and actuated by some common
impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and
aggregate interests of the community.”
30
For further references, see Novak (2014: 38 ff.). On John Stuart Mill’s theory of legislation and his
warning that “no class, and no combination of classes, should be able to exercise a preponderant
influence in the government” (Mill 1975: 246), Frohnen and Carey (2016: 120–129).
31
In the same vein, Zingales (2014: 141). On impact, in general, see Friedman (2016).
32
Dür (2008: 1216), with further references and Grande (1996). For a general overview, see Mazey and
Richardson (2001); Fairbrass and Warleigh (2002); Pedler (2002); Eising (2007).
33
Up until the 1990s it appears to be overriding. See Rubin (1975: 79).
34
Farber and Frickey (1986/87: 875).
35
On the impact of behavioural economics on law see, e.g. Posner (2001); Thaler and Sunstein (2008);
Zamir and Teichman (2014). Cf. also Chap. 5 in this volume.
36
Rubin (2003); Kalt and Zupan (1990); Kalt and Zupan (1984); McArthur and Marks (1988); Farber
and Frickey (1986/87: 897–901). It should be noted that whilst differing in some minor points this
approach does not deviate fundamentally from the economic theory of policy. Although it rejects the
view of political actors as narrowly egocentric maximizers, it submits the role of ideology in political
decision-making to economic analysis.
10 Special Interest Legislation and Legislative Capture 210

influential. Since I do not claim that all legislation is SIL, I have no difficulty with a caveat,
however, and findings that legislation counteracts special interest do not falsify the existence
of SIL. Failures of lobbying may result either from successful counteractive lobbying or from
an opposing government ideology. 37 Moreover, no counter argument stems from the fact that
most legislation claims to pursue the public interest and it is rare that a politician does not
portray himself, at least in some vague manner, as a public servant 38. Interest groups usually
adopt the public-interest strategy to express themselves through supposedly public-regarding
legislation. 39 Since special interests are competitive in nature, the discrimination of special
interests is inevitable. Despite continuing debates, it is a widely recognised fact that legislation
gives rise to wealth transfers from some groups to others. 40 Rent seeking 41 even becomes a
separate industry. Furthermore, most legislation has concentrated beneficiaries and diffused
cost bearers. Even critics of economic capture models of regulation admit: “Since every
economic policy decision produces transfers of wealth, it is always possible to infallibly relate
political outcomes to distributional impacts”. 42 Nevertheless, the mere fact that individuals or
firms benefit from legislation does not automatically prove its special interest character. For
example, a law imposing new cash registers to prevent tax evasion can hardly be called a
lobbying measure in the interest of manufacturers, even if they can look forward to a strong
sales growth as a result of legislation.

10.1.2 Aim of the Analysis

With regard to the tremendous impact of legislation on a country’s economy and social life, an
unbiased analysis of the input and output of legislation in terms of competing societal and
economic interests is necessary. The political issue of lobbyism strengthens the need to come
to grips with special interest influence on legislation and regulation. There is mounting
awareness that lobbyism damages the image of legislation and even OECD papers suggest
focusing “on how to reassure the public that the governmental decisions are not being made
simply in the interests of well-paid lobbyists and those who can afford to hire them”. 43 As a
lawyer, I will focus on the legal foundations and limitations of special interests in legislation
and will look, in particular, at German Constitutional Law with glances toward European Union
Law, British and US Law.
SIL may be defined by its input as well as by its outcome. The special interest effect does
not necessarily result from interest group influence. Take the following example: although
“green energy” policy may be driven by the conviction to serve the public interest, it benefits
stakeholders in the renewable energy industry. This does not necessarily mean that the policy
is misguided. Even a strong interest group influence on legislation does not conclusively prove
that the legislation is substantively wrong. Having said this, the delicate question of pressure

37
German politics provides a wide range of examples.
38
Surowiecky (2004: 268).
39
Tullock (2008).
40
Cordato (2017) and Hart (2012: 166–167).
41
See Krueger (1974) and, for a brief definition, Farber and Frickey (1986/87: 878 footnote 36): “Rent-
seeking refers to the attempt to obtain economic rents (i.e., payments for the use of an economic asset in
excess of the market price) through government intervention in the market”.
42
Kalt and Zupan (1984: 281).
43
OECD (2012: 102).
K. Meßerschmidt 211

group influence on energy policy abides. Instead of providing empirical proof, which exceeds
the capacity of an individual researcher, I will simply present anecdotal knowledge. Some years
ago, the German MP Hermann Scheer, who was a strong supporter of green energy, died. As
is generally known, the number of obituaries printed and the space given to them traditionally
stand for the reputation and importance of the deceased, and one might even think they are
worth an upgrade in heaven. Scheer’s obituaries contained a veritable “Who is who?” of the
renewable energy industry. According to a widespread view, people with good intentions can
never become lobbyists.44 However, the idea that lobbyism is intrinsically related to “bad”
interests must be rejected. 45 An analysis of the German energy legislation leads to the
breathtaking result that a large part of the regulations serves to ensure the redistribution in favor
of the producers of renewable energies. 46

10.2 Factual and Normative Premises

A couple of clarifications. Despite what is generally believed, critical attention for the issue of
SIL does not stem necessarily from a populist bias. On the contrary, it is consistent with
contemporary pluralism precisely because this theory of modern society encompasses and
accepts the conflict of interests. Thus, opponents of SIL are not exclusively those who believe
in the neutral power of the state but also include neoliberal critics of the welfare state who
emphasise the inseparable relationship between state intervention and vested interests. 47
However, apart from the “special interest effect” of regulation, deregulation also serves special
interests. 48 Neoliberal criticism of SIL consequently reveals the role of special interest but does
not lead automatically to an end of special interest influence.
Realist (“cynical”) theories of legislation are not caught in the trap of naturalist fallacy.
Pointing at the “impact of money in politics” (Huefner 2017: 127–134) does not entail
embracing the legislator-as-agent approach 49 from a legal point of view; quite the opposite in
fact. 50

44
On the dichotomy “good” versus “bad” lobbying OECD (2012: 27–29).
45
In this respect, the Swiss, in particular, take a neutral stand, judging from the news in Neue Zürcher
Zeitung, the Grand Old Lady of Swiss liberal press, and contributions to legal theory and political science
from Switzerland. This relaxed attitude may be explained by virtue of the unique system of direct
democracy lobbyism, which is subject to checks and balances.
46
This applies in particular to the Renewable Energy Resources Act (Erneuerbare-Energien-Gesetz –
EEG) covering more than 100 pages of text, which contains dozens of extremely detailed regulations
that primarily serve to organize financial flows. Further regulations can be found in statutory ordinances
based on EEG.
47
On the minimal state see Nozick (1974), on the “lean state” and the German debate Karpen (2009:
109–110).
48
As Carpenter and Moss (2014: 16) state, “capture … can drive deregulation as readily as it drives
regulation”.
49
Huefner (2017: 37–39).
50
Therefore, there is no equation of motives and reasons. Special interest theories deal with the motives
and effects of legislation. They thus adopt an empirical approach. Motives and reasons are clearly not
the same thing, cf. Gert (1998) and Weinberger (1991). This report deals with normative reasons in legal
terms (not as an issue of normative ethics) in its second part.
10 Special Interest Legislation and Legislative Capture 212

10.2.1 Premises

Against this background, my analysis is based on the following premises (P):

(P1) ‘Interests’ in themselves are legitimate.
(P2) The representation of interests is part of the political process. Parliaments, in particular,
represent the Nation but also all members of the People, stakeholders included.
(P3) Initially most interests are special interests.
(P4) Special interests may be defined as interests, which are not necessarily shared by
everybody.
(P5) Although many modern theorists hold that the public interest is only the result of a
bargaining process between competing special interests, the idea of public interest should be
upheld. Theories like that of Kant and Rawls 51 try to establish standards of the ‘common good’
above the coincidences of political and social struggle.
(P6) Therefore, we are looking for criteria, which turn special interests into the public
interest. At the same time, there is a need to determine which kind of special interest can never
be transformed into a public interest.
(P7) The bulk of legislation is, however, neither exclusively driven by special interests nor
by the public interest. Mostly it is a mixture of both or a compromise of competing special
interests.
(P8) Special interests affect both the input and output of legislation. Thus, the role of special
interests may be determined either by legislative history or by legislative impact.
(P9) Special interests contribute to the rising tide of legislation (“flood of laws”) and vice
versa, deregulation may reduce SIL. Deregulation itself is, however, prone to special interests
(P10) Special interest legislation and lobbyism have cross-links and are mutually
reinforcing. Lobbyist influence, however, is not a prerequisite for SIL.
(P11) Lobbyism aims at attaining favourable results in the interest of stakeholders. It is
inevitable and has some good sides.
(P12) Though lobbyism is not bad in itself, it represents serious risks for democracy and the
integrity of legislation.
(P13) Whilst the focus here is on lobbyism, the practice of cooperative lawmaking and
negotiated legislation must also be taken into account.
(P14) Legislation encounters lobbyism in diverse ways. In principle, a greater distinction
should be drawn between defensive and proactive lobbyism.
(P15) Lobbyism does not end with the enactment of the law. It also targets ex-post
evaluation and ensuing case law.
(P16) Most people take a one-sided view of SIL. This is not to say they are generally
opposed to SIL but rather use the term to refer to a policy, which they dislike, whereas they
rarely apply the term to their own preferred policies. Within the academic debate, an open-
minded, unbiased and comprehensive concept of SIL is necessary.
(P17) A more neutral view suggests that SIL is neither bad nor good. Although it takes
second place to public interest legislation, it is not necessarily “evil”.

51
Rawls’ influential theory of justice responds inter alia to the problem that wealthy groups are, in
general, in a position to influence legislation and policies that advance their interests. See Rawls (2001:
148–150).
K. Meßerschmidt 213

(P18) Accepting SIL, however, does not mean allowing it to go unchained and unchecked.
SIL, in particular, may not make use of illicit means and must meet standards of transparency.
(P19) So far, transparency standards have only resulted in a sophistication of lobbyism by
replacing plain “old school” lobbyists with law firms, consultants and think tanks. This new
system of steering is more efficient and dangerous than old-fashioned lobbyism. Leaving
behind amigo affairs, the new lobbyists connect expertise and influence by offering support to
politicians and officials by providing though one-sided information and public relations.
(P20) Therefore, intensifying “lobby control” is a priority task. Since traditional watchdogs
are not sufficiently efficient, I propose a new instrument of economic impact review of
legislation with a focus on economic costs and the benefits of legislation. I am not the first to
recognize that it “should also be clear for each rule, ‘who pays and who benefits’” (Di
Benedetto 2017: 226). This review will go far beyond the evaluation of bureaucracy costs, as
established in Germany, and overcome the priority given to budgetary costs. Unlike this small-
scale German project, economic impact review is not addicted to a one-sided anti-red-tape
philosophy, but will complete Regulatory Impact Assessment and strengthen the agenda of
rational lawmaking. If we are to go by the recommendation to make the EU Commission’s
Impact Assessment Board more independent,52 however, there is another lobbyism problem
around the corner.

10.2.2 Comments

Although most of the above assumptions are self-explanatory, a short comment may help. The
first principle (P1) stems both from the recognition of individual self-determination and from
human dignity. The second (P2) reflects a liberal and pluralist, non-totalitarian understanding
of democracy, while principle P3 acknowledges that interests are of a primarily particularistic
nature and do not embrace necessarily collective goods. The problem with thesis P4 consists
in the underlying supposition that, as opposed to special interests, another kind of interest exists
which may be qualified as non-special or general. For a simple example think of a forest fire.
Extinguishing the fire is what everybody is interested in, primarily, of course, those whose
properties are at risk. Thus, in this case the general character of the interest results from the
parallel interests of all stakeholders. Let us now assume that one of the neighbours began the
fire to collect the insurance money on his property. Does this restrict fire protection to a ‘special
interest’? Most people will reject such an interpretation because the interest of the arsonist is
not only “special”, but is also illegitimate. As we can see from this example, the illegitimacy
of the special interest does not follow from the interest itself but from the method employed.
While discarding illegal action as a means for pursuing happiness is particularly marked,53
drawing a distinction between special interests and public interest by substantive criteria, as
suggested in thesis P5 leads into difficult terrain. Contrary to widespread popular belief, no
clear demarcation exists between special interests and the common interest and presumably the
difficulty of defining the ‘common interest’ beyond political ideology 54 is yet another reason
not to talk about the role of special interests. However, this is not enough reason to neglect the
topic. On the contrary, it seems that the silence on the issue of special interests indicates the

52
Xanthaki (2017: 279).
53
Illegal behaviour, however, does not characterise lobbyism. “In fact, if regulatory capture were due
solely to illegal behaviour, it would be simpler to fight” (Zingales 2014: 124).
54
See, among others, Sunstein (1985: 31–35).
10 Special Interest Legislation and Legislative Capture 214

bankruptcy of political philosophy. It is therefore vital to proceed further on the path indicated
in thesis P6.
Accepting pluralism relieves legislative theory of the need to construe a general
metamorphosis of special interest into public interest (P7). The idea of pluralism, however,
does not compel scholars to deny the problem of SIL. SIL can be detected on the one hand by
the conditions under which laws are made and on the other by their impact (P8). Thus, SIL
does not necessarily result from lobbying activities. Privileged access to lawmakers, in turn,
does not guarantee a particular outcome. Both of these observations are pertinent to the research
on SIL and may affect the legal evaluation of SIL. In case of overlap, “observations about
interest group influence have a procedural flavour that submerges the underlying substantive
judgment” (Elhauge 1991/92: 63). This interdependency deserves to be kept in mind.
Although special interests contribute to the rising tide of legislation, legislative theory rarely
addresses this linkage. 55 In thesis P9, I refer to the paradox of deregulation and its sibling
privatisation, which is driven by special interests, 56 but in the end, may reduce special interest
regulation. Neoliberalism 57 successfully proclaimed that many tasks should be subject to
privatization and European law encourages this policy, which is based not only on budgetary
reasons, but also on ideas of market economy and competition, despite the guarantee of services
of general economic interest enshrined in Article 106(2) TFEU. Yet another reason for
privatisation consists in private investors’ interests; public utilities are a safe harbour for
investors searching for investment opportunities in the face of over-capitalisation and reduced
capital expenditure requirements because of deindustrialisation (which the highly speculative
property market cannot fully absorb). In addition, public transport, education,
telecommunications,58 postal services, electricity, gas and water supplies and waste disposal
yield the possibility of a sort of “private taxation”. Therefore, I strongly advocate submitting
the deregulation and privatisation agenda to a special interest test, though this recommendation
may come too late in many cases.
Considering the close connection between lobbyism and SIL, lawmakers may enact
provisions serving specific interests of their own volition (P10). Although the analysis of SIL
often requires meticulous detective work, investigative journalism by itself is not always
sufficient, and methods from the social sciences may help to determine the effects of
legislation.
Lobbyism does not necessarily disturb the process of democratic decision-making. By
providing lawmakers with information on legislative facts and the kind of difficulties
implementation may run into lobbyism broadens the evidence base of legislation. 59 Seen from
the perspective of the legislature lobbyism is therefore not necessarily detrimental (P11).
Privileged channels of influence, however, are susceptible to abuse (e.g. by presenting fake
information60 or profiting from insider information) and constitute a major part of the bigger

55
See as an exception Akkermans (1996: 306).
56
See, on the link between privatisation and the growth of the lobbying industry, Gay (2016: 164).
Carpenter and Moss (2014: 10), point to the role of the World Bank: “Djankov and his World Bank
colleagues established a highly structured, Bank-funded deregulatory initiative that recommended and
tracked reforms worldwide with the intent of easing barriers to the creation or launch of a new business.”
57
An overview of neoliberalism can be found in Steger and Roy (2016).
58
I refer to the former EU Commissioner Mr. Bangemann who afterwards joined Spanish Telefonica.
59
See, e.g., Nourse (2016: 28).
60
Lobbyist information differs from knowledge sharing by its strategic use and selectivity. For the sake
of continuous cooperation lobbyists, however, may be well advised to present reliable information.
K. Meßerschmidt 215

picture of post-democracy (P12). Lobbyism largely profits from the poor autonomous and
independent fact-finding capacities of legislators. 61 Considering the rather disturbing
observations of Colin Crouch (2004) and German experiences, it has to be feared that the state
of democracy has deteriorated in recent years to the degree that popular trust in it is threatened.
An even more radical approach modifies the concept of statehood. In the context of the
principal-agent-approach, the citizen is the principal whereas the once sovereign state is merely
the agent. This looks like the triumph of democracy over the state and the taming of Leviathan
to a more or less useful domestic animal. 62 The “active citizen”, however, dominates over the
all too often ignorant voter, with the former being a euphemism for interest groups,
corporatism, neocorporatism, the media and lobbyism. Furthermore, although it exceeds the
scope of this study, special interest participation beyond simple lobbyism by cooperative law
making does merit closer attention (P13).63
Admittedly, the proposed distinction between defensive and proactive lobbyism (P14) can
hardly count on general agreement. For example, the idea that protecting interests against
legislative action is less questionable than attempting to claim new markets by law can be
criticised for privileging traditional stakes over innovative expanding interests. This objection
is to be taken seriously, although from a legal point of view the protection of established
interests against legislative action may deserve more support than a strategy which aims at
using legislation as a tool to change the economic playing field. Looking at the “list of sins” of
SIL in German and EU legislation, stimuli for a new supportive legislative environment prevail.
Examples from Germany include legislation to promote renewable energies and financial
support for a (additional) capital-based pension insurance scheme (“Riester-Rente”). 64 The
more complex the structure of legislation, the more difficult it is to uncover the SIL
components. This lesson was not considered by the German Liberal Party (FDP) some years
ago. When it imposed a VAT reduction in the sole interest of the hotel industry almost
everybody associated this decision to a financial donation by the owner of Mövenpick hotels
to the Party 65 since there was not the slightest trace of public interest. Smart lobbyists prefer to
not openly follow their agenda, but instead disguise them as altruistic objectives and also use
the strategy of linking prevailing public opinion to the covert goal of creating new business
opportunities. One can also differentiate between direct and indirect lobbying. 66 Only
particularly ill reputed special interests, such as the gambling industry, stick to the (largely)
outdated method of gathering together all the friends that money can buy. 67
It is worth mentioning here that lobbyism goes beyond the law-making process in the
narrow sense (P15). Lobbyists also influence ex-post evaluation either directly or indirectly by

61
On the second point, see Popelier (2017: 54) and Uhlmann and Konrath (2017: 79–80).
62
I borrow this metaphor from Schulze-Fielitz (1993).
63
For references, see Meßerschmidt (2015: 61–63).
64
Mr. Riester, a former trade union leader, initiated in 2000/2001 as Minister of Labor an additional
capital-based pension provision. After the end of his term, he worked for the financial industry and
lectured on the Riester pension. See https://lobbypedia.de/wiki/Walter_Riester (last accessed 4 February
2018).
65
See http://www.handelsblatt.com/my/politik/deutschland/fragen-und-antworten-warum-die-hotel-
steuer-der-fdp-auf-die-fuesse-faellt/3348142.html?ticket=ST-390800-CfmOXjNYMgJa4nxuHwod-
ap3.
66
Huefner (2017: 71). The latter is also known as “grassroots lobbying”.
67
Another example provides US hedge funds Cerberus known for its aggressive business practices by
recruiting former German Ministers of Defence Rühe and Scharping as advisors. See
https://www.cicero.de/wirtschaft/die-helfer-der-heuschrecken/38163 (last accesses 3 March 2018).
10 Special Interest Legislation and Legislative Capture 216

well-meaning think tanks. 68 Other targets are courts. 69 Lobbyists try either to reinforce
legislation or to modify it via benevolent case law. Rumour even has it that the branch of the
German Supreme Court, which deals with banking law, has a special relationship with the
banking industry. Since this harsh criticism has been levelled by a member of the illustrious
circle of attorneys accredited at the Supreme Court,70 it is worth mentioning. Moreover, special
interest groups may also address business, media, and the public. Such strategies either replace
or prepare the ground for direct lobbying at the threshold of political power. A vicious cycle of
interest- and ideology-bound information and decision-making looms where it becomes
difficult to determine self-interested orchestrators from objective advisers.
Despite this, an analysis of lobbyism must not be distracted by political sympathies (16).
When talking about special interest legislation most critics point the finger at the political
rivals. At the same time, there is a strong feeling that SIL is inevitable and therefore ubiquitous;
this could explain why SIL and lobbyism remain peripheral in legisprudence. To start with we
must stop applying the term “lobbyists” exclusively to those interest groups we dislike, 71 and
should admit that all individuals and nongovernmental organisations aiming to influence
political decisions are lobbyists, be it Greenpeace, Amnesty International or religious groups.
This contradicts the common distinction between lobbyists and advocacy groups. 72 Even
though it is clear that it means a difference whether one represents purely economic interests
or political goals, it would be wrong to exclude nonprofit citizens’ initiatives from the outset.
Admittedly, advocacy groups play a valuable role in bridging the gap between state and
society 73 and may contribute to responsive government. 74 Especially in Germany, however, it
cannot be denied that many citizens' initiatives have lost their innocence and entered into an
alliance with lobbyists. 75 In addition, the fundamental question arises whether the
representation of private interests is less legitimate than the pursuit of political goals. However,
this question can only be raised here and not discussed.
My recommendation to take a closer and unbiased look at SIL and to stop treating the
subject as a taboo (P17) does not imply the unconditional endorsement of vested interests.
There are many instances when the results of lobbying have seemed to verge on corruption, for

68
See Bennett (2002: 44). In Germany Bertelsmann-Stiftung plays a major role in setting the political
agenda. For further information see https://lobbypedia.de/wiki/Bertelsmann_Stiftung (last accessed 4
February 2018).
69
See Bouwen and McCown (2007) and Elhauge (1991/92: 80–87).
70
Vorwerk (2008).
71
In the same vein, Lord Wallace remarked “that a lot of those consulted regard themselves as a
legitimate part of the political process but regard everyone else as lobbyists” (House of Commons
Political and Constitutional Reform Select Committee, Introducing a Statutory Register of Lobbyists
[HC 2012 – 13, 153]).
72
On the lobbying versus advocacy debate see, e.g., the Interest Groups, Advocacy and Democracy
Series published by Palgrave and www.cltnetwork.org/wp.../Advocacy-vs-Lobbying-1-28-14-final.pdf
(last accessed 1 March 2018). I have supplemented this clarification in response to an interesting
discussion at the Conference on Legisprudence held in Zaragoza (Faculty of Law) on 22/24 February
2018.
73
See, e.g., Héritier (1999).
74
See, e.g., Steffek, Kissling and Nanz (2008) and Uhlmann and Konrath (2017).
75
This is true both of nature conservation associations that support the expansion of wind energy and,
e.g., the advocacy group “Deutsche Umwelthilfe” which successfully fights against the Diesel engine
being sponsored by Toyota and the German government. See
http://www.faz.net/aktuell/wirtschaft/diesel-affaere/deutsche-umwelthilfe-bekommt-geld-von-toyota-
14256098.html (last accessed 3 March 2018).
K. Meßerschmidt 217

example the German party funding scandal of the late 1990s 76 or the susceptibility of British
MPs to lobbyism unveiled with the help of the hidden camera by British media. 77
Indeed these examples serve to highlight the need to make lobbyism more transparent and
to bring public accountability and disclosure to lobbying activities (P18). There is no need to
present (yet again) the well-known EU provisions and their shortcomings. 78 I fully subscribe
to the recommendation to extend transparency rules to all EU institutions and all professions,
in particular lawyers, and it is quite ironic that the most effective lobbyists, which are often law
firms, 79 still escape control (P19). In the face of intense resistance from “lobbyists in disguise”,
the establishment of full transparency will be difficult to achieve, especially when lobbyism
takes the more subtle form of replacing “cash for law” by “influence through reciprocity”. 80
Since the procedural approach to SIL resembles the race between the hare and the tortoise, I
recommend providing additional protection by introducing an economic impact assessment 81
of major legislation (P20). As an extension of regulatory impact assessment, it will hardly be
foreign to the legislative process and, in this way, asymmetric impacts of legislative proposals 82
can be brought to light. Although it is essential to define the scope and the methods of review
and to build institutional capacities, fine-tuning can be implemented in the further process. The
growing awareness of the importance of knowledge management in the public sector83 will
facilitate the improvement of impact assessments and counterbalance the influence of strategic
information by interest and pressure groups. Alas, the regulation of lobbyism in Germany is
extremely poor whereas in the United Kingdom the series of reported scandals contributed to
the introduction of more transparency. 84

10.3 Legal Problems

76
See http://news.bbc.co.uk/2/hi/europe/610234.stm.
77
See on the “cash for access” scandal www.bbc.co.uk/news/uk-politics-22754297 (last accessed 18
February 2018): “Three peers and an MP have been accused of agreeing to do parliamentary work for
payment after undercover reporters for the Sunday Times, BBC Panorama and the Daily Telegraph
posed as lobbyists”. I do not wish to reproduce the scene in Buñuel’s “The Discreet Charm of the
Bourgeoisie” where Fernando Rey insults the ambassador of a fictitious Latin-American state by
pointing to grievances in a tone becoming increasingly aggressive. Therefore, it is with no pleasure at
all that I drop the name of Francisco Correa aka Don Vito. Meanwhile, Spanish courts have sentenced
the ringleaders to several decades in prison. See
https://elpais.com/elpais/2018/05/24/inenglish/1527154734_539755.html (last accessed 6 September
2018). There are contradictory explanations for the fact that politicians in Germany hardly stand in court.
78
See, instead, OECD (2012). On US law see Huefner (2017: 127–180).
79
On the “lawyer problem” OECD (2012: 25) and Meßerschmidt (2012a). “Legislative outsourcing” got
into the public debate in 2009 when part of the rescue package and the bail-out draft for the German
banking industry (“Gesetz zur Ergänzung des Kreditwesengesetzes”) was printed on official stationery
of Linklaters who operated as draft writers even though they have close contacts with the finance
industry. See for details in English https://www.thelocal.de/20090812/21191 (last accessed 1 March
2018).
80
OECD (2012: 30–32) with further references.
81
For a thorough analysis of impact assessment in general, see Meuwese (2008).
82
See Meßerschmidt (2015: 78–79).
83
See Voermans (2009: 200–202).
84
Gay (2016).
10 Special Interest Legislation and Legislative Capture 218

In the second part of this chapter constitutional law arguments are considered; arguments in
defence of the articulation of interests on the one hand, and constitutional law criteria setting
limits to SIL on the other. 85 The focus will be on German law without any intention to present
it as a model. At the scientific level US legal scholarship, with its focus on the problem: “Does
Interest Group Theory Justify More Intrusive Judicial Review?” (Elhauge 1991/92), 86 once
again leads, and many commentators have advocated a more stringent judicial review of
statutes to counterbalance the flawed political process. 87 Alas, this debate is one-step ahead of
itself since it must first be determined whether interest group influence and/or special interest
impact of legislation matters in judicial review. Although not referred to in most constitutional
charters,88 it is necessary to identify the constitutional fencing-in and controlling of lobbyism,
legislative capture and special interest legislation. It is common in constitutional law to seek
solutions to problems that have not previously been addressed and in many jurisdictions hopes
are directed to the Courts.89 Despite warnings from the US experience, where the Supreme
Court has repeatedly struck down efforts to regulate (lobbyist) campaign financing, 90 this also
remains our hope.

10.3.1 Rights to Lobbyism

The articulation of private interests can be justified under the German Basic Law (hereinafter
GBL), by fundamental freedoms, and by the principle of democracy. The German Federal
Constitutional Court has confirmed by way of obiter dictum the right of interest groups to seek
influence over Parliament. 91 It should be noted, however, that Article 38(1) first sentence of
the GBL rejects the legislator-as-agent theory by proclaiming that Members of the German
Bundestag “shall be representatives of the whole people, not bound by orders or instructions,
and responsible only to their conscience”. This provision, which is in the spirit of Edmund
Burke, 92 nevertheless leaves space for reasonable forms of lobbying. The guarantee of private

85
The summary is limited to German Constitutional Law. On the US experience Magill (2014); Sunstein
(1985).
86
On the democracy-reinforcing role of judicial review see, among others, Almendares and Le Bihan
(2015).
87
Sunstein (1985: 49–55); Elhauge (1991/92: 33), with a list of the prominent scholars making this
argument (Chemerinsky, Epstein, Mashaw, Shapiro, Siegan and Sunstein) and a summary of their
arguments for a more intrusive judicial review at p.44. These arguments cannot be discussed here
because most of them are rooted in US Constitutional Law. For the opposite view, see Farber and Frickey
(1986/87: 908–924).
88
Lack of time has prevented a complete survey however.
89
The litigation process, however, cannot be treated as exogenous to interest group influence, cf.
Elhauge (1991/92: 34). To the contrary, according to Landes and Posner (1975: 894), the courts enforce
the “deals” made by effective interest groups with earlier legislators.
90
For references see Huefner (2017: 139–158). Sunstein (1985: 55) has (once) stated, “It would be
foolish to suggest that . . . the Court has been engaged in a serious or sustained effort to police the
operation of interest-group politics. On the other hand, it would be equally foolish to attempt to explain
current law as a system in which interest-group politics is accepted as an ordinary and permissible
element of the political process.” This assessment, however, has proven to be over-optimistic.
91
5 BVerfGE 85 at 232. The case giving rise to this obiter dictum concerned the banning of the German
Communist Party. Paradoxically, it reads like a manifesto of pluralism. Although it took place more than
five decades ago, it is still used as precedent.
92
See his famous speech to the electors of Bristol of 3rd of November, 1774, No. 4.1.25 (available at
www.econlib.org/library/LFBooks/Burke/brkSWv4c1.html).
K. Meßerschmidt 219

property (Article 14 GBL) and the freedom of profession (Article 12 GBL) not only protect the
core of the right to own property and to have a profession but also corresponding rights to
communicate, advertise and express these interests in political life. One may also refer to the
freedom of opinion (Article 5 GBL) and the freedom of association (Article 9 GBL). In the
same vein, the European Charter of Fundamental Rights guarantees the pursuit of individual
rights. These freedoms, however, though allowing the expression of self-interest, do not
include the right of access to rulers. 93 To talk to Members of Parliament, to drafters in the
Government or to Ministers and the Chancellor, is a chance or a privilege but no right. The
German Constitution only guarantees a right to petition (Article 17 GBL). While individuals
have rights to judicial scrutiny of enacted laws, there is no fundamental right to discuss with
lawmakers legislative blueprints prior to enactment. Even if rules of procedure provide for
hearings, no right to participate in those hearings exists, and a ‘balanced’ participation in
hearings is sufficient. “In the legislative context, no participation need be afforded as a matter
of constitutional right” (Sunstein 1985: 67). Thus, even the most inventive lawyers will not
succeed in construing a “Charter of Fundamental Rights of Lobbyists”. At the same time, the
relationship between democracy and lobbying is at best ambivalent. While lobbying is not
entirely antidemocratic, it seems daring to attach greater value to it because of its assumed
democratic merits.94

10.3.2 Limits of Special Interest Legislation

The German Constitution addresses neither the problem of lobbyism nor the issue of special
interest legislation. Nevertheless, some conclusions may be drawn from general provisions of
the German Basic Law. Against the political background of constitutionalism, this is no
surprise: all constitutions in the French tradition endeavour to fight privilege and discrimination
in one way or another. While attacking traditional privileges, however, they also impede the
creation of new privileges.
Although there is no explicit ban on SIL in the German Constitution, limitations arise from
restrictions on special, individualised legislation, the equal-protection principle and the
prohibition of arbitrary action. Binding requirements of generality, such as those in Article
19(1), first sentence GBL and the tradition-steeped prohibition of single-case laws stipulate
abstract-general regulation 95 but can be evaded easily. Yet they send a signal against overly
individualised lawmaking. While this controversial kind of laws may bear some similarities
with UK, US and Commonwealth Private Bills in so far as the latter can also serve specified
interests in individual cases, they differ by a variety of characteristics such as legal tradition,
legal status, right of initiative, procedures and safeguard mechanisms. 96 It would be worth
investigating whether Private Legislation offers more transparency and better chances for
rational justification than the German tabooing of economic interests in regulated
environments. Institutional safeguards may establish a more acceptable form of special interest

93
Schmitt (1947) treats this question in a very particular historical context.
94
Cf. on this view, however, von Bogdandy (2000: 75): “Aufwertung der Beteiligung partikulärer
Interessen aufgrund ihrer demokratischen Qualität”. Cf. in contrast the lucid analysis of the ambiguity
of the participatory process by Mureinik (1993: 39).
95
See G. Kirchhof (2016: 89–127). For a comparison with US constitutional law, see Schutz (2004).
96
See C. Davis (2008) and House of Commons (2014). I owe this very valuable reference to one of the
anonymous reviewers and regret that I cannot discuss the parallel in depth.
10 Special Interest Legislation and Legislative Capture 220

legislation. Furthermore, we should note that it does not matter whether in fact only one
individual or corporate body is affected, but whether this is intended. 97
Owing to the distributional impacts of legislative and regulatory decisions, the equal-
protection principle might be expected to play a pivotal role in policing special interest
legislation. Article 3(1) GBL seems to stand like a bulwark against SIL. A closer look shows
that this expectation is often disappointed and, in fact, it frequently appears that distributional
impacts are negligible for the very reason that they occur everywhere and at any time. Seen in
this way, the scope of equal protection is limited to a corollary of infringements of different
fundamental rights. This view, however, denies the legal independence of the equality clause
and hence must be discarded as unconstitutional. Nevertheless, the equal protection principle
is only of limited relevance in the field of SIL, because the equal protection principle in Article
3(1) GBL in general boils down to a ban on arbitrariness.98 This means that any legislative
interference can be justified by common welfare considerations. In view of the difficulty of
interpreting vested interests as part of the public interest, this line of defence, though not
negligible, is vulnerable. At the same time, two restrictions to the principle of equality must be
observed. First, the principle of equal treatment does not preclude differentiations. Second,
standards of judicial review are weak in deference to political prerogatives of Parliament and
the Administration. Whilst the case law of the German Constitutional Court does show some
examples of SIL being struck down, 99 a closer inspection reveals that the German Court is no
better than the US Supreme Court at detecting special interests.100
Moreover, the mostly unwritten principles of proportionality and coherence, firmly
anchored in the rule of law, contribute to a rationality control of legislation, which can help to
reveal some of the detrimental effects of special interest influence. Since the legislative purpose
is at the heart of the proportionality test, 101 the issue of vested interests will be raised. In
addition, lobby(ist) influences may affect the (correct) application of sub-criteria of the
proportionality test, such as the demands for adequacy and necessity, and the balancing
requirement (proportionality in a strict sense). 102 Considering the links between these
requirements and the principle of (economic) efficiency, 103 this approach promises to detect
distortions driven by special interests. Again, however, the impact of this principle very much
depends on the density of judicial review. Another restriction follows from the fact that

97
The weird example of the only Frenchman paying the new tax on luxury yachts simply results from
the fact that owners are fleeing the French Riviera. See https://www.france24.com/en/20170812-france-
yacht-owners-flee-riviera-tax-changes-regulation-macron-france-saint-tropez-antibes (last accessed 6
September 2018) and Frankfurter Allgemeine Zeitung No. 166 from July 20, 2018, p. 19.
98
E.g. P. Kirchhof (2017). The related obligation of consistency in lawmaking is still debated, see the
controversial contributions by Christian Bumke, Matthias Rossi and Roland Ismer in Meßerschmidt and
Oliver-Lalana (2016: 155–232).
99
See 7 BVerfGE 377 (pharmacy case) and 39 BVerfGE 210 (Mühlenstrukturgesetz). These decisions
as well as many others, are however debatable because, in fact, they only privilege one special interest
over another. For the more express rationality cases of the US Supreme Court see Sunstein (1985: 49–
50).
100
See Farber and Frickey (1986/87: 909–912).
101
Oliver-Lalana and Meßerschmidt (2016: 9).
102
See, in general, Sieckmann (2016: 356). The German and continental proportionality test must not be
confounded with US complaints about “disproportionate” lobby influence; see Elhauge (1991/92: 48
ff.).
103
Meßerschmidt (2001); for a short English summary, see Meßerschmidt (2012b: 363–364). Popelier
(2012: 261) points to the insertion of efficiency standards in the proportionality principle. For further
references, see Elhauge (1991-92: 68–71).
K. Meßerschmidt 221

proportionality review only applies to cases where individual rights are at stake. To provide an
example: a private-benefit expropriation is subject to a complete judicial review, whereas the
sale of public assets mostly escapes effective judicial control.
This brief overview illustrates actual and potential judicial approaches to SIL as well as
performance limitations due to the judicial doctrine on fundamental rights and judicial self-
restraint. Despite some constraints, it seems promising to proceed on this basis and to relate
substantive law to SIL.

10.3.3 EU State Aid Law

A further focus lies on the relationship between state aid law and the mitigation of risks from
SIL. SIL is likely to cause distortion of competition and this is the main objection of Stigler
and other economists to SIL and regulation in general. Distortion of competition is not just a
side effect of SIL but its ultimate objective. Against this background, US scholars argue that
antitrust law provides the appropriate vehicle for judicial policing of interest group capture. 104
Due to an overly narrow focus of German and European State Aid Law on budgetary
transfers, 105 a large part of election gifts and law-made property transfer escapes the notice of
state aid control. Admittedly, state aid law only applies to the concrete transaction and does not
automatically cover legislative measures. While it is established that any improvement of the
general economic and legal playing field, which does not in itself inflict any cost upon the state,
is not covered by Article 107(1) TFEU,106 the European Court of Justice (ECJ) reviews, at
least, both grants and tax provisions in the light of state aid law107 and, according to consistent
ECJ case law, tax rules providing relief from the general level of taxation for specific
businesses are recognised as state aid. 108 On the other hand, mention is often made of a broader
reading of the concept of state aid. 109 Experts warn, “The Commission would be taking on a
Herculean task if it sought to review each and every regulation – including those that do not
lead to a burden on the State budget – in order to bring about a comprehensive control for
national measures” (Soltész 2016: 165). While the European Commission has a broader
understanding of state aid and the need to fight evasion, the ECJ sticks to a restrictive view of
state aid via a narrow reading of the category ‘granted by a Member State or through State

104
For references see Elhauge (1991/92: 45–46).
105
Direct payments from the national budget and tax reduction.
106
Schön (2016: 404) no. 13-026 with further references.
107
See Schön (2016: 405–406) no. 13-028 with further references.
108
Belgium v Commission (C-75/99) [1999] E.C.R. I-3671, para 23; Banks (C-380/98) [2001] E.C.R. I-
6117, para 30; France v Commission (C-251/97) [1999] E.C.R. I-6639, para 35; Piaggio (C-295/97)
[1999] E.C.R. I-3735, para 34; Germany v Commission (C-156/98) [2000] E.C.R. I-6857, para 25; Adria-
Wien-Pipeline (C-143/99) [2001] E.C.R. I-8365, para 38; Ferring (C-53/00) [2001] E.C.R I-9067, para
15; GIL Insurance (C-308/01) [2004] E.C.R. I-4717, para 69; Belgium v Commission (C-5/01) [2002]
E.C.R. I-11991, para 32; Spain v Commission (C-276/02) [2004] E.C.R. I-8091, para 24; Italy v
Commission (C-66/02) [2005] E.C.R. I-10801, para 77; Spain v Commission (C-276/02) [2004] E.C.R.
I-8091, para 24; AEM Spa (Joined Cases C-128/03 and C-129/03) [2005] E.C.R. I-2861, para 38; Air
Liquide (Joined Cases C-393/04 and C-41/05) [2006] E.C.R. I-5293, paras 29-30; RENV British
Aggregates v Commission (T-210/02).
109
Arhold (2016: 82–85) and Slotboom (1995).
10 Special Interest Legislation and Legislative Capture 222

resources’. 110 The PreussenElektra Schleswag case 111 made this perfectly clear. Despite the
legal obligation of all electricity customers to subsidize renewable energies the Court denied
applying state aid law for the sole reason that the payment circuit never directly affected the
state budget. Due to this purely formal perspective, the applicability of state aid law is limited
by the skill of the legislator to find bypass solutions. What is overlooked here is that
PreussenElektra differs from the leading Sloman Neptun case. 112 In the latter, the Court
understandably rejected the idea that a deregulation of labour and the ensuing reduction of
labour costs constituted ‘state aid’ because no sufficiently direct link between benefits and
disadvantages had been established. Unlike PreussenElektra there is no legal obligation to
transfer payments (in Sloman Neptun) but a simple chance to benefit economically from
regulation or deregulation. Although I am not arguing in favour of a total submission of SIL to
the state aid corset, a less formal-legal and more problem-oriented approach is required. The
applicability of Article 107(1) TFEU should not depend on the regulatory techniques used for
the adoption of the measure. 113 It is a missed opportunity that the ECJ has not grasped the full
meaning of state aid law and its interplay with SIL.

10.3.4 Procedural Approach

Furthermore, growing interest in the due process of lawmaking and its judicial review 114 could
involve infringements of procedural standards by excessive lobbying. While substantive
criteria are a way of combating excess, supplementary procedural provisions and codes of
conduct are in place to prevent legislative capture. Though the history of lobbying reform in
the United States and Europe has been reported on numerous times, 115 lobbying regulation and
reform are, even viewed generously, works in progress. 116 Whereas the German law, with a
few minor exceptions, turns a blind eye to this issue 117 European politics is defining down
legislative capture to a dialogue with stakeholders. 118 It has become apparent, however, that

110
For details, see Arhold (2016: 154–188).
111
PreussenElektra (C-379/98) [2001] E.C.R. I-2099, paras 54–67.
112
Sloman Neptun (Joined Cases 72/91 and 73/91) [1993], E.C.R. I-887.
113
Quigley (2015: 112) with further references.
114
See Bar-Siman-Tov (2011); Bar-Siman-Tov (2012); Linde (1976); Meßerschmidt (2016); Rose-
Ackerman et al. (2015).
115
Holman (2009).
116
I would rather compare it to a construction site with mostly unwilling workers.
117
After all, German law submits secondary professional activities of deputies to a notification and
publication obligation. The German Federal Constitutional Court approves this not only because of
Parliament’s ability to function properly, but also in terms of restricting special interest influence, cf.
118 BVerfGE 277 at 324–336 and 330–331 in particular.
118
See, as an example, European Union, Commission Staff Working Document: Better Regulation
Guidelines COM(2015) 215 final, p. 63–85. The Chairman of the Better Regulation Commission
commented: “Good consultations gives business and other stakeholders a real stake in the EU’s decision-
making process. For us, good consultation means to consult the right people at the right time and in the
right way” (Haythornthwaite [2007: 24]). See on the discussion, Chabanet (2011); Coen (1997);
Greenwood (2007); Moessing and Honer (2014); Chari et al. (2007). On the lobbyist regulatory regimes
in Europe OECD (2012: 59–87). EU documents and working papers are manifold, ranging from
Lehmann (2003) to the recent Interinstitutional Agreement on Better Lawmaking between the European
Parliament, the Council of the European Union and the Commission (13 April 2016). Renda (2006: 22)
rightly points out, “Opening the door to mandatory public consultation is a double-edged sword, as it
K. Meßerschmidt 223

not all stakeholders have equal access to the negotiating table. 119 Moreover, the EU register of
lobbyists (Transparency Register) suffers from a number of loopholes. The “revolving door
effect” remains insufficiently resolved 120 and therefore the Register and the trivial code of
conduct are not likely to prevent lobbyists from achieving influence through secretive channels.
The word “conflict of interests” when applied to EU officials and politicians is a euphemism;
judging from the professional careers of those involved there is no conflict at all. In 2017,
Germany even joined those countries opposed to an extension of the EU Transparency
Register. 121 In the absence of any watchdog body 122 the procedural approach is, anyhow,
toothless.
US scholars, in particular, advocate a containment of special interests by more aggressively
overseeing the legislative process 123 and some opinion suggests that legislative decisions will
be upheld only if they reflect true deliberation. 124 Courts should “scrutinize the political process
carefully to ensure that legislators were responding to something other than factional pressure”
(Sunstein 1985: 54). Judicial review of procedural requirements, it is hoped, may prevent
circumvention of democratic safeguards such as representativeness, transparency and
accountability (Popelier 2012: 270). Legislators who behave according to private interests or
to maximize their own benefit do not meet corresponding rationality standards. 125 Though the
burden of proof might render procedural review practically ineffective in most cases, it should
be possible to judge from the legal materials whether the legislator has favoured certain
interests without adequately considering the costs that such favourable treatment will impose
on others (Goldfeld 2004: 373). In a similar vein, the advocates of a democratic culture of
justification emphasize that “courts can steer legislative and executive decision-making away
from interest bargaining and towards deliberation” (Fredman 2015: 452).

10.4 Outlook

What are the prospects of taming lobbying and SIL containment? The answer to this question
largely depends on who is willing to sponsor a more anti-SIL policy. As a result of the extensive
presence of SIL, almost everybody seems to profit from it in some way or another.
Associations, law firms and think tanks earn their living by lobbyist services; business people
want to advance their interests through legislation, and legislators expect some sort of reward.

enables increased participation by the general public in the early stages of the regulatory process but at
the same time exposes regulators to risks of lobbying and capture.”
119
Coen (1997: 105).
120
In response to the Barroso–Goldman Sachs affair, the moratorium will be prolonged only from 18
months to two years for Members of the Commission and to three years for the President. See Neue
Zürcher Zeitung of September 19, 2017, p. 4.
121
Germany only recently resisted Council proposals to extend the Transparency Register, see Der
Spiegel, http://www.spiegel.de/politik/deutschland/bundesregierung-torpediert-schaerfere-lobbyismus-
regeln-in-bruessel-a-1167818.html (last accessed 4 February 2018). The UK has adopted a more strict
attitude, see Gay (2016: 170–172).
122
OECD (2009: 28).
123
For references see Farber and Frickey (1986/87: 915).
124
For references see Farber and Frickey (1986/87: 917).
125
Oliver Lalana (2005: 242). On the pivotal question of whether legislation can be rational when it
results from interest representation see Wintgens (2002: 3).
10 Special Interest Legislation and Legislative Capture 224

Does SIL, after all, provide a win-win situation? Certainly not. Disadvantaged competitors and
consumers as well as taxpayers have to carry the burden of inefficient and unfair regulation.
Unfortunately, the victims of SIL, as “Public Choice” literature informs us, are less capable of
building viable interest coalitions than compact interest groups are. The “free rider” problem 126
contributes to the imbalance and the comparative weakness of opponents of SIL. Another factor
favouring SIL is its complexity; it is difficult to discover hidden special interests in pieces of
legislation deemed to serve the public interest and it is even more difficult to draft legislation
that escapes the SIL trap. Considering that economics of regulation is still in its formative
phase,127 the knowledge base is low. Thus, the problem of SIL is more complex than state aid
or corruption and the difficult circumstances surrounding it discourage studies in this field. At
the same time, critics of lobbyism and SIL run the risk of stigmatization. Is lobbyism not just
another conspiracy theory? 128
Against this background, better lobby control depends on a growing awareness of the wider
political risks of interest-bound legislation. Considering ongoing developments indicative of
what is often termed ‘post-democracy’, the prevailing indifference towards SIL and legislative
capture weakens the legitimacy of legislation. Concurrently, the European Commission, the
World Bank, OECD and other international players are all lobbying for a “Better Regulation”
agenda, 129 with a focus on efficiency and deregulation. Although most studies and declarations
of such origin rarely address the issue of SIL, the call for rational, evidence-based legislation
also encourages the effort to filter out SIL. The Better Regulation movement, however, is not
a reliable partner since its agenda arouses suspicion concerning the impartiality of some
proposals; special interests can easily hide behind REFIT. 130 Presumably, the agenda is rooted
in neoliberal thinking 131 privileging efficiency over justice. Simultaneously, the new culture of
consultation, another cornerstone of the “Better Regulation” agenda, has changed direction. At
least, the focus has moved from the participation of civil society, which was the original idea, 132
to improved and fully legalised interest group access to legislation – the same kind of
‘transformation’ that can be said to have turned ‘deliberative democracy’ into a technocratic-
paternalist alternative to democracy. 133 In sum, not only the efficiency, but also the credibility
and the dignity of legislation 134 are at stake. From a wider perspective it does appear that the
inherited institutions of parliamentary democracy and the rule of law are degenerating into the
mediation of corporate interests while voters are fobbed off with ‘spectator democracy’ and

126
On the free-rider effects inherent in collective decisions, see Baumol (1952); for further references
https://plato.stanford.edu/entries/free-rider/ (last accessed 3 January 2018).
127
Veljanovski (2010: 34–35).
128
In this vein, the OECD has made a call to “avoid stigmatisation of the phenomenon of lobbying”
(2009: 10).
129
See Weatherill (2007); Voermans (2016), with further references. See also OECD (2011): “Better
Regulation improves economic and social welfare prospects, underpins growth and strengthens
resilience”. In the same vein, IMF: “Good governance is key to economic success” (IMF Factsheet
March 14, 2016; http://www.imf.org/en/About/Factsheets/The-IMF-and-Good-Governance; accessed 4
April 2017).
130
See EU Commission, EU Regulatory Fitness (Communication) COM(2012) 746 final, 3. For the
context and further references, see Robinson (2017: 252).
131
See Karpen (2009: 109–110).
132
See Duprat (2005: 162–163).
133
For an affirmative approach to the deliberative model and further references see Fredman (2015: 450–
54).
134
See Waldron (1999).
K. Meßerschmidt 225

average plaintiffs can only dream of the principle of equality of arms. The tremendous increase
in the growth and influence of big law firms in European capitals combines both trends,
although it is still an exaggeration to describe the situation as a “state within the state”. 135
Another embarrassing fact is the wide-ranging access of political entrepreneurs to state
leadership. 136 Only a shallow treatment of the issue would relate the “commercialisation of
democracy” 137 to bad leaders or outrageous events.
At the same time, no government has renounced on the assertion that it transcends parochial
interests. The pretension to the public good, which has given its name to statehood (res publica)
since Roman times, is still a cornerstone of state legitimacy while being at constant risk of
becoming mere lip service; it is unsurprising that even corrupt cliques in failed states pretend
to serve the public interest (although this situation may not be as different from that in Europe
as we would like it to be). Sometimes the difference is not a matter of principle but of
sophistication, for instance by creating longer chains of compensation instead of immediate
payment and replacing direct bribes by more complex, mutually beneficial relationships,
networks and “cultural capture”. 138 Perhaps at some point in the future we will learn that
lobbyism and special interest legislation reached new highs in the course of the financial market
crisis. Since the containment of lobbyism has become a matter of “maintaining trust in
government” 139, a more serious approach is overdue. Therefore, legisprudence must overcome
its comfortable role of absent-minded bystander and engage in the economic impact assessment
of legislation, covering both criteria of efficiency and distributive justice, and thus
strengthening the legislative culture of justification. It should do so for its own sake as well as
in the interest of upholding trust in political institutions.

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 Part III

Legislation, Lawyers, and Citizens

Chapter 11
The Global Revival of Legisprudence: A Comparative View
on Legislation in Legal Education and Research

Ittai Bar-Siman-Tov *

Abstract This essay explores the revival of legisprudence as the field within legal studies that is
dedicated to researching and teaching about the theory and practice of legislation. While arguing that we
are witnessing a global revival of legisprudence, the essay focuses on a cross-Atlantic comparison of the
field in the Unites States and in Europe. It explores the parallels, and differences, in the development of
legisprudence/legislation in the Unites States and in Europe. This exploration challenges the perception
that legisprudence is a new field, and argues that the field has deep and respectable historical roots, but
that it has been largely abandoned for most of the 20th century. It further examines the reasons for this
neglect, as well as the reasons for the field’s recent revival since the end of the 20th century. Finally, it
explores the barriers, and potential, for a global cross-national development of the field of legisprudence.
Keywords Legislation • Legisprudence • Legislative studies • Science of legislation • Legal education
• Legal scholarship

One of the challenges of writing about legisprudence from a comparative or cross-national

perspective is that the field has traditionally developed separately in each nation, with little
cross-boundaries fertilization (Voermans and Eijlander 1999). Even a commonly-accepted
term to refer to this field does not exist. In the U.S., some scholars in the past have used the
term “legisprudence” (Cohen 1950, 1983); but today the legal field of studying legislation is
usually simply referred to as “legislation” (e.g., Eskridge 2003; Eskridge and Frickey 1987;
Garrett 1999) or “legislation and statutory interpretation” (Garrett 2008a). “Legislative studies”
is usually used to refer to the political science field of studying legislatures (e.g., Martin,
Saalfeld, and Strøm 2014). In Europe, even when writing on this legal field in English, a wide
array of terms is employed, such as: legisprudence, legistics, legistique, legislation studies,
legislative studies, science of legislation, and theory of legislation (e.g., Karpen 2005).
Sometimes, even the same term is given various meanings. For example, the term
“legisprudence” is often used as a general name for the legal field of studying legislation (e.g.,
Cohen 1950, 1983; Mader 2001; Karpen 2012; Voermans and Eijlander 1999), but it is also

I. Bar-Siman-Tov ()
Faculty of Law, Bar-Ilan University, 52900 Ramat-Gan (Israel)
e-mail: [email protected]

For helpful comments on previous drafts I thank the participants of the International Conference on
Legisprudence – Conceptions and Misconceptions of Legislation, at Zaragoza University School of Law,
22/24 February 2018. Many thanks as well to my dedicated team of research assistants: Daria Chill, Tair
Samimi Golan, Yuval Shaki, Avichay Tweeg and Shani Wiersch.
11 The Global Revival of Legisprudence 234

sometimes used to refer to a particular theory of legislation (e.g., Wintgens 2006), and
sometimes as a term to describe the judicial view or case-law about legislation (e.g., Gluck
2010).
In this essay, I will attempt to provide a comparative, cross-Atlantic discussion of the field.
I will interchangeably use the main American term “legislation” and main European term
“legisprudence.” I will use them to mean: the field within legal studies dedicated to researching
and teaching about the theory and practice of legislation. This broad definition is used to
capture the observance that this legal field includes a broad spectrum of scholarship from the
highly theoretical philosophical discussions of legislation 1 to the highly practical scholarship,
such as scholarship directed at instructing legislative drafters.2
I will argue that toward the end of the 20th century, and even more so, during the 21st century,
we are witnessing a global revival of legisprudence as an area in legal scholarship and teaching.
Part 1 will discuss the story of the revival of legisprudence/legislation in the US. I will
challenge the perception that this is a new field in legal academia. Instead, I will argue 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 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. While these reasons would seem to be particularly American, Part 2 will argue
that there are fascinating and surprisingly similar parallels between the development of
legisprudence/legislation in the U.S. and its development in Europe and other jurisdictions such
as Israel. This is particularly interesting given that these developments have occurred quite
separately with little cross-Atlantic influences. Finally, Part 3 will turn from the past and
present of legisprudence to discussing its future. It will ask whether the field of legisprudence
could have a more global future, with more comparative work and cross-national fertilization.
Before turning to the discussion, a few caveats are in order. First, any argument about
general cross-national trends and comparisons entails inevitable broad generalizations and
over-simplifications. Second, and relatedly, in this brief essay, I, of course, do not purport to
provide a detailed historical study of the development of legisprudence. Rather, I briefly
describe its development in broad strokes. Finally, I will provide citations to support my claim
that the revival of legisprudence is occurring in many parts of the world and in various types
of legal systems. Yet, given limitations of scope, in this brief essay, I will focus on the
jurisdictions I am most familiar with: the U.S. and its comparison to Europe, with occasional
references to other jurisdictions, such as Israel. I hope that future studies will expand the
dialogue to additional jurisdictions in Asia and in the southern hemisphere (cf. e.g. Alemán
2013; Arter 2006; Carter 2017; de Paula 2017).

10.1 The Revival of Legislation: The American Perspective

Do you like Legislation?

I do not like Legislation. I will not teach it, Jimmy Chen.
…
I will not teach it in the Fall,
I just don’t like the course at all!

1
Think, for example, of works by Waldron (1999a; 1999b) and Wintgens (2006), among others.
2
Think for example of Karpen (2008), among others.
I. Bar-Siman-Tov 235

Look here, Jimmy Chen, now look!

I do not like Phil Frickey's book!
I will not teach in fall or spring,
A full-blown course, or shortened thing!
I will not start the course in March,
The whole darn thing is such a farce!
I will not teach 4 days a week!
That would make the students freak!
I will not teach it here or there!
I will not teach it anywhere!
I do not like Legislation! I do not like it, Jimmy Chen!

This quote is part of a verbatim transcript of an actual faculty meeting about curricular
reform in an American law school (Paulsen 2001). Fortunately, just like the original children’s
book (Seuss 1988), the speaker finally “sees the light” and realizes that s/he actually loves
legislation and would love to teach it. This, in a nutshell, is the story of legislation in American
law schools: from long neglect to revival.

10.1.1 Legislation as a Long Forgotten Field

Bill Eskridge and Phil Frickey, two of the pioneers of introducing legislation into legal
education, once observed: “Legal academe’s approach to the systematic study of ‘legislation’
resembles Congress’ attitude toward balancing the federal budget: everyone agrees that it is a
good thing, but laments that it is not done” (Eskridge and Frickey 1987: 691). This quip
provides a generally accurate description on the state of legislation studies in American law
schools during most of the 20th century. Indeed, a recurring theme in the American scholarship
since the 1980s is the observation about legal academia’s systematic neglect of legislatures and
legislation (e.g., Cohen 1983; Fitts 1988; Garrett 1999; Nourse 2012; Posner 1983; Stern 2014;
Waldron 1999a; Waldron 1999b). 3 Based on this overwhelming agreement about the long-
547F

standing neglect of legislation, one might be tempted to believe that the study of legislation is
a new trend in American legal scholarship and teaching.
Yet, the idea that this is a new field might make several prominent figures rollover in their
graves. Perhaps the best well-known example is Thomas Jefferson. While most famous as the
author of the Declaration of Independence (and the third President of the United States),

3
Consider, for example, the following observations, which are just a few representative quotes out of
many others: “The inquiries of jurisprudence… have focused mainly on the judicial side of the legal
order… its counterpart on the legislative side of the legal order has, with notable exceptions, been left
to languish” (Cohen 1983); “For most of our history, the legislative process, unlike the administrative
and judicial processes, has not been the focus of sustained legal scholarship” (Fitts 1988: 1569);
“Notwithstanding the importance of the legislative process to complete, sophisticated legal analysis, the
legal academy focuses very little of its attention on Congress and state legislatures” (Garrett 1999: 679);
“[T]he study of law almost invariably centers on the courts… The study of ‘legisprudence’… is much
neglected” Stern 2014: vi-vii); “There is nothing about legislatures or legislation in modern
philosophical jurisprudence remotely comparable to the discussion of judicial decision-making.”
(Waldron 1999a: 1); “If one asks what analytic jurisprudence has offered… to the judge, lawyer, or law
professor interested in legislation, the answer is embarrassing” (Waldron 1999b: 9); “More than
occasionally, law professors reveal a stunning lack of knowledge about Congress’s rules. This reflects
the failure of the standard law school curriculum, with its courses on civil procedure, criminal procedure,
and administrative procedure, but none on legislative procedure” (Nourse 2012: 72)
11 The Global Revival of Legisprudence 236

Jefferson was also the author of the first American book on parliamentary procedure (Jefferson
1801). Jefferson based his Manual of Parliamentary Practice not only on practical experience
(as a state legislator and later as the U.S. Senate’s presiding officer), but also on his academic
studies. In fact, we know that in the early 1760s Jefferson studied parliamentary procedure at
the College of William & Mary (one the two oldest universities in the U.S.). Moreover, as
Governor of Virginia, Jefferson led a reform in the College’s curriculum and created a legal
studies program that included studying not only case-law but also statutes, and practical legal
training that included not only moot court but also a model legislative session (Dixon 2014). A
later prominent example is Jabez Gridley Sutherland, the legislator, judge and law professor
who published the influential treatise on “Statutes and Statutory Construction” (Sutherland
1891). Indeed, in the specific area of statutory interpretation, there is a distinguished history of
scholarship in the United States, with Sutherland’s being the most famous example (Danner
1987). Calls for greater scholarly and curricular attention to legislation in the U.S. are also not
as new as one might expect. There is certainly historical evidence for such calls from the late
19th century and the first half of the 20th century (e.g., Entrikin and Neumann 2017; Cohen
1947; Landis 1934; Stack 2015), albeit these calls remained largely unheeded (Entrikin and
Neumann 2017; Posner 1983; Stack 2015).
Notwithstanding this history, American legal academia largely neglected legislation (and
regulation) throughout most of the 20th century (Stack 2015; Strauss 2016; Rubin 2007; Cohen
1983; Fitts 1988; Posner 1983; Entrikin and Neumann 2017). Thus, it would be inaccurate to
say that legisprudence is a new field or that the emergence of legislation into legal scholarship
and teaching is an entirely new trend. Rather, it is more accurate to say that legisprudence has
deep and distinguished roots in the U.S., but that it has long been a forgotten and neglected
field.
This raises the question of why was legislation neglected for so long in American law
schools. An examination of American scholarship yields various explanations, and there are
differences of opinion on some factors. 4 Yet, I think that few will disagree with the claim that
the “main culprit… has been legal education's self-perpetuating preoccupation with litigation
and case law” (Dickerson 1986: 316). This exclusive preoccupation with courts and case law,
with its resulting neglect of legislation (and regulation), has several explanations. Some claim
that “The explanation is simple: we are a common law country. Just as European authors find
it difficult to fit case law into a world of statutory codes, so we have trouble fitting statutes into
a common law system” (Popkin 1999: 1). Related explanations turn to features of the traditional
American legal culture that valorized judge-made law as the superior and real source of Law,
while viewing legislation as an inferior source of law, seen more as a matter of politics than
law (Stack 2015; West 2011; Jackson 2016). Additional explanations include features of
American legal teaching that rely on the case-method (rather than statutes) to study the various
subjects of law (Rubin 2007; Strauss 2016). While the former could be attributed to a broader
Anglo-American common-law tradition, dating back to Blackstone (Eskridge, Frickey &
Garrett 2001); the latter is often “blamed” on the excessive influence of Harvard’s Christopher
Columbus Langdell on American legal education (Rubin 2007; Strauss 2016). At any rate, the
common assumption from these discussions would seem to be that the long neglect of

4
To give but one example: Some claim that “Hart and Sacks killed legislation for almost a generation
because their now classic materials reflected the nineteenth century's focus on judicial decision making,
rather than the more recent focus on legislative and administrative decision making” (Eskridge 2003: 5);
whereas other argue that Hart and Sacks actually tried to lead an approach that challenges the exclusive
focus on judicial decision making, but that their efforts to direct more attention to legislation failed
(Strauss 2016).
I. Bar-Siman-Tov 237

legislation stems from features that are unique to American, or at least Anglo-American, legal
culture and education. We shall return to this assumption in Sect. 10.2.

10.1.2 The Revival and Recent Blossoming of Legislation

While most of the 20th century has been marked by a neglect of legislation in American law
schools, the end of that century has seen the revival of the field, and by the beginning of the
21st century, we could already describe a blossoming of the field.
The revival of the field in the U.S. occurred around the 1980s. The Association of American
Law Schools (founded in 1900) established a Section on Legislation & Law of the Political
Process in 1985. 5 Some scholars (Pildes 2003; Strauss 2016) mark the rebirth of the field with
the publication of the first edition of Eskridge and Frickey (1988) influential textbook on
legislation (whose sixth edition is currently underway). By the 1990s, “an avalanche of
scholarly and pedagogical materials on legislative processes and their products has swamped
legal education” (Frickey 1996: 469), with Frickey declaring: “the past decade has probably
been the most fruitful in history for legal academics in the field of legislation” (Frickey 1992).
The revival of legislation in legal education has been no less dramatic. By 2003, almost
90% of the surveyed American law schools (124 out of the 143 surveyed schools) offered a
legislation course in their curriculum, and about one third (46) offered more than one legislation
courses (Morisey 2003). Since then, offering several legislation (and regulation) courses have
become a staple in the elite American law schools. As of 2014, Columbia, Harvard, Yale and
Georgetown each offered four courses on the subject; Berkeley offered three; and Stanford,
Chicago, NYU, Michigan, Duke and Cornell each offered two courses (Gluck 2015). An
increasing number of schools also offer courses on legislative drafting (Entrikin and Neumann
2017; Levine 2017). Indeed, in some schools the trend seems to be developing from offering a
course on legislation to offering a program on legislation, which includes both academic
courses and practical clinics on legislation (Rudesill, Walker and Tokaji 2015).
It appears that today there is no longer any disagreement about the need to teach legislation
courses in American law schools (Newton 2012), to the extent that supporters of studying the
judicial process are envying the state of education about legislation (Shannon 2016). Today,
the debate turned to questions such as whether legislation should be an elective course or a
mandatory first-year course (as roughly 40 law schools, including Harvard, NYU and
Michigan, have already decided to do) (Brudney 2015; Leib 2008; Gluck 2015); and whether
the basic course should focus exclusively on legislation or on legislation and regulation
(Manning and Stephenson 2015; Gluck 2015). 6
To be sure, many legislation scholars and teachers would probably argue that much more
should still be done, and that the picture should not be painted in excessively bright colors. Yet,
I think that few would disagree that we have been witnessing quite a revival of the study of
legislation in American law schools over the past twenty years.

5
The AALS Section on Legislation and Law of the Political Process provides for the development and
sharing of research, teaching methods, and materials in legislation, legislative process, legislative
drafting, the courts-Congress relationship, and interpretation. See
https://memberaccess.aals.org/eWeb/dynamicpage.aspx?webcode=ChpDetail&chp_cst_key=5cdfd3b0
-d888-4365-bb83-3ddd470a5033 (accessed on February 3rd, 2018).
6
As well as additional debates about the specifics of the ideal structure and contents of legislation
courses (see, e.g., Briffault 2003; Garrett 2003; Widiss 2015).
11 The Global Revival of Legisprudence 238

What could explain this great revival? Here as well, an examination of the scholarship yields
various explanations (see e.g., Eskridge 2003; Frickey1996). Yet, I believe that the major and
most fundamental explanation is simply the growing recognition that legal education is
increasingly becoming detached from legal reality and legal practice. The reality was that
primary and secondary legislation have become the major sources of law, and thus legal
practice required greater work with legislation. In these circumstances, the gap between legal
reality and the demands of legal practice, on the one hand, and legal education’s continued
exclusive focus on courts and case-law on the other, simply became inexcusable (Brudney
2015; Frickey 1999; Stack 2015; Strauss 2016; Rubin 2007).
Indeed, already at the beginning of the 1980s Guido Calabresi (1982) has proclaimed “the
Age of Statutes,” with his famous and influential observation that “we have gone from a legal
system dominated by the common law, divined by courts, to one in which statutes, enacted by
legislatures, have become the primary source of law.” Since then, the observation about “the
Age of Statutes” in the U.S. has been repeated by countless scholars. 7
Yet, one of the fascinating findings is that not only academics, but actually judges
themselves, have been instrumental in promoting this cognizance, as well as its resulting
conclusion that law schools should direct more attention to statutes. Indeed, one of the great
boosts to the field came from Justice Scalia, who in an influential lecture, turned into a widely-
cited book, observed: “We live in an age of legislation, and most new law is statutory law” and
added: “By far the greatest part of what I and all federal judges do is to interpret the meaning
of federal statutes and federal agency regulations. Thus the subject of statutory interpretation
deserves study and attention in its own right, as the principal business of judges and (hence)
lawyers” (Scalia 1997). Scalia was certainly not the first judge to make such statements
(Frankfurter 1947; Posner 1983), nor the last (Collins 2014; Kavanaugh 2016), yet he has
probably been the most influential (Frickey 1999).
Scalia’s statement also includes a hint to another major driving force behind the revival of
legislation in the U.S.: The revival of the legislation field was very much sparked by a revival
of the more specific sub-field of statutory interpretation (Frickey 1999). A neglected field
during most of the 20th century, the last two decades of the 20th century were marked by “an
explosion of interest in the field of statutory interpretation” in the U.S. (Popkin 1999: 1). This
explosion of interest was very much propelled by the rise of influential textualist judges
(including Scalia) (Eskridge 1990; Frickey 1999), which prompted a massive (and seemingly
endless) scholarly debate between supporters of purposivist, intentionalist, and textualist
approaches to statutory interpretation (Jellum 2015; Manning 2010).
In short, by the beginning of the 21st century, the vast majority of American law schools
become aware of the age of legislation (and regulation) in the U.S., and realized that legal
academia should catch-up to this reality. As we shall see in the next section, while this story
appears quite American, parallel developments occurred in Europe and other parts of the world.

10.2 Beyond the American Perspective: Challenging American Exceptionalism

The previous section has described the story of legislation in American legal academia, from
distinguished roots to long neglect to revival and even recent blossoming. This section will

7
In a Hein Online search I conducted in November 2016, 2,120 articles repeated the term “age of
statutes”.
I. Bar-Siman-Tov 239

argue that this story is not unique to the U.S. It will show that a surprisingly similar story can
be told in other countries as well.

10.2.1 Legisprudence as a Long Forgotten Field

Observations (and criticisms) about the long neglect of legislation in legal academia are not
unique to the U.S. Very similar observations about “systematic neglect of legislatures” appear
in legal scholarship from a large variety of legal systems (Bauman and Kahana 2006: 1; and
see also, e.g., Bar-Siman-Tov 2016, 2018; He 2014; Karpen 2005; Sebba, 1995; Wintgens
2006, 2013). Interestingly, in many of these legal systems (and not only common-law systems)
a common explanation for the neglect of legislation is similar to the main explanation in the
U.S.: legal scholarship’s preoccupation with courts and judges (ibid).
And just like the American experience, this long-time neglect of legislation is
notwithstanding deep and distinguished roots of legisprudence scholarship. While I have given
Thomas Jefferson as a primary example in the U.S., the most well-known example across the
Atlantic is probably Jeremy Bentham. While most famous as a pioneer of utilitarianism,
Bentham has also written extensively on the theory of legislation, parliamentary procedure and
parliamentary reform (e.g., Bentham 1789, 1817, 1843). Bentham, who was “convinced that
he possessed ‘genius for legislation’,” dedicated his entire adult life to the field (Burns 1984:
7). And, indeed, he had “considerable influence” on the reform of Parliament (as well as other
institutions) (Bisson, Roberts & Roberts 2016: 307), and is often credited as “the father of the
theory of legislation” (He 2014: 104–05 n. 1). Yet, Bentham was certainly not alone in this
distinguished history. In fact, Burns (1984:7) observes that “the notion of a ‘science of
legislation’ is widespread, almost commonplace, in late eighteenth-century Europe.” 8
Moreover, as Jeremy Waldron (1999a) has shown, legisprudence has even deeper roots in legal
philosophy, dating back to Aristotle.
Interestingly, a very similar narrative could be said of legisprudence in Israel (albeit in much
shorter timeframes). Gad (Guido) Tedeschi, one of the fathers of legal education in Israel, can
also be seen as the father of legisprudence in Israel (Sebba 1995). Yet, his call to teach and
research legislation remained unheeded for many decades, until very recently (Sebba 1995;
Bar-Siman-Tov 2018).
In the previous section I argued that rather than seeing legislation as an entirely new field
in the U.S., given its distinguished (albeit forgotten) roots, it can more accurately be described
as a recently revived field. Interestingly, European scholars reached the exact same cognizance
about legisprudence (Wintgens and Oliver-Lalana 2013):

Theoretical reflection on legislation is certainly an old concern for jurisprudence and

political science: in a sense, the spirit of legisprudence may be traced back long ago in
the history of legal and political thinking. (...) If legisprudence is claimed to be a new
approach, it is because that spirit has only recently been reshaped and updated in order to
recover a dedicated space to study legislation within the field of legal philosophy and
legal theory.

Indeed, some European scholars have described legisprudence as the “sleeping beauty”
(Karpen 2012: 150). Similar observations were made by non-European legisprudence scholars
as well (He 2014; Bar-Siman-Tov 2018).

8
I thank Francesco Ferraro for drawing my attention to this source.
11 The Global Revival of Legisprudence 240

In short, we see fascinating similarities, across different types of legal systems, in the history
of legisprudence from distinguished roots to long neglect. This parallel between the history and
neglect of legislation in the U.S. and in countries that do not share its common-law culture of
valorizing case-law while vilifying legislation, nor its Langdell’s case-method tradition, is
striking. This raises questions for future exploration about what could be other explanations
for this similar neglect of legislation for so long. 9

10.2.2 The Global Revival and Recent Blossom of Legisprudence

In Sect. 10.1.2, I described the revival of legislation in American law schools toward the end
of the 20th century and its blossoming in the beginning of the 21st century. A very similar
picture, with only a slightly different timeframe, can be seen in Europe.
The Swiss Peter Noll (1973) is often credited as reawakening the field of legisprudence, at
least in the German speaking countries (Mader 2001; Karpen 2012; Uhlmann 2011), and
similar revival began in other European countries in the last two decades of the 20th century
(Voermans and Eijlander 1999; Karpen 2005; Karpen 2012; Karpen and Xanthaki 2017). 10
Since the beginning of the 21st century, this revival has turned into burgeoning interest in
legisprudence. As Wintgens and Oliver-Lalana (2013: v) observed: “Over the last 15 years,
[the] attempt to refund the theory of legislation has been followed by a wealth of what might
be called legisprudential research. This demonstrates that this theory is gaining as much
significance as it had in past centuries.”
While the Western European countries may have been pioneers in the revival of
legisprudence, in more recent years, we see an emerging revival of the field in many additional
jurisdictions around the world (e.g., Bar-Siman-Tov 2016, 2018; Carrillo and Cordeiro 2016;
Carter 2017; Chang 2013; Drinóczi 2015; Gac 2015; Goetz and Zubek 2005; He 2014;
Khusainov, Khabibulina and Valiullin 2016; Khusainova, Valiullin and Fomicheva 2016;
Mańko 2012; de Paula 2016; de Paula 2017; Sotomayor Trelles n.d.).
The global revival and recent blossoming of legisprudence can also be seen in the founding
of the European Association of Legislation and its evolvement into the International
Association of Legislation, 11 and in the establishment of countless other international and
national associations dedicated to promoting the study and research of legislation and to
improving lawmaking (for a list of several of these organizations see Bar-Siman-Tov 2015;
Beetham 2006). It is also evidenced by the establishment of many legal journals dedicated
specifically to legislation, legisprudence and legislative drafting; 12 as well as political science

9
One interesting explanation, suggested by my European colleagues at our International Legisprudence
Workshop on Conceptions and Misconceptions of Legislation at Zaragoza University, is that as the wave
of codification in Europe ended and as a generally-accepted approach to statutory interpretation was
accepted, the academic interest in legisprudence waned.
10
To be sure, I do not suggest that growth of legisprudence has been the same in all these European
countries or that the trend has always been linear. For example, Oliver-Lalana and Meßerschmidt (2016)
argue that the academic debate on legisprudence in Germany has been characterized by fluctuations in
activity and popularity and is generally not as developed as in other European countries.
11
“The raison d’être of the IAL is to promote science, research, teaching and the practical application
of rules and good practice in legislation field.” http://www.ial-online.org/about/legislation-at-heart.
12
E.g., The Theory and Practice of Legislation (formerly Legisprudence); The Journal of Legislation;
Harvard Journal on Legislation; New York University Journal of Legislation and Public Policy; Statute
Law Review; Legislation and Policy Brief; Journal of Parliamentary and Political Law; Seton Hall
I. Bar-Siman-Tov 241

journals dedicated to legislative studies; 13 and of course, the establishment of the

Legisprudence Library, in which this essay will be published. 14
Notwithstanding the revival of legisprudence scholarship, the revival of legislation
education may not have been as extensive everywhere as it was in the U.S. For example,
Uhlmann (2011) reports that in Switzerland most law schools (6 out of the 9 surveyed schools)
offered at least one course specifically dedicated to legislation, whereas in Germany roughly
one-fourth of the law schools offered similar courses.
Yet, the revival of legislation courses in American law school’s curriculum does have some
parallels in countries outside the U.S. Israel, known for the Americanization of its law schools
(Lahav 2009; Sandberg 2010) is perhaps an obvious example. The leader of this trend has been
Bar-Ilan University, which since 2011 established a basic course in legislation; a legislative
process workshop with the Knesset Legal Department; a legislation clinic with the Counseling
and Legislation Unit at the Ministry of Justice; a large number of courses, seminars, workshops
and clinics on regulation; a dual law-political science degree program on governance and public
policy; a graduate program in environmental regulation; and a doctoral program in regulation
and public policy. The former Dean of Bar-Ilan’s law school highlighted the development of
this extensive legislation-regulation program as one of his major agendas (Weiler 2014).
Similarly, the Dean of Tel-Aviv University’s law school highlighted the introduction of a first
year legislation-regulation course as one of the most important and innovative cornerstones of
the Faculty’s curriculum reform in 2015 (Maanit 2015). Today, many other Israeli law schools
also offer at least one course on legislation, and some (such as Sapir Academic College) also
have clinics on legislation.
Interestingly, the stated reasons for this significant curricular change in Israel are the same
as in the U.S.: the realization that legislation and regulation constitute the major sources of law
and that legal education cannot continue to focus exclusively on teaching case-law (Bar-Siman-
Tov 2018). Some law schools also explicitly stated that they were inspired by the curricular
reforms in American law schools, such as Harvard (Maanit 2015). It is also interesting to note
that, similarly to the U.S., judges also played a role in promoting the cognizance of the need to
teach legisprudence. Indeed, the most influential Israeli judge of our generation, Chief-Justice
Aharon Barak stated in an interview to the Israeli bar journal: “With regard to legal education,
we know and criticize the jurisprudence, and that's fine, but very little is done about the theory
of legislation. I think it’s time, I’m talking about the various law faculties, to teach the theory
of legislation” (Dror 2011: 34). On the other hand, unlike the U.S., I do not think that the revival
of legisprudence in Israel (or in continental Europe) was propelled by a sudden revival of
interest in statutory interpretation.
This raises an interesting question: In common-law countries like the U.S. (and mixed-
systems such as Israel), the revival of legislation/legisprudence can be linked to growing
cognizance of the central role of legislation in the legal system (and for legal practice). Yet,
what could be the impetus for the field’s revival in civil-law countries, where the realization
that legislation is the primary source of law is nothing new? It appears that in such systems, a
major driving force was the growth in the number of laws, and growing criticisms of the quality
of legislation (Karpen 2005, 2012; Uhlmann 2011). Hence, legisprudence in Europe grew to a
large extent as an effort to improve the quality (and sometimes also to reduce the quantity) of

Legislative Journal; LKRI Journal of Law and Legislation; The International Journal of Legislative
Drafting and Law Reform; Hukim – Journal on Legislation; Zeitschrift für Gesetzgebung [Journal for
Legislation]; LeGes – Gesetzgebung & Evaluation [Legislation & Evaluation].
13
E.g., Journal of Legislative Studies; Legislative Studies Quarterly; Parliamentary Affairs.
14
Springer’s Legisprudence Library.
11 The Global Revival of Legisprudence 242

legislation (Karpen 2005, 2012; Uhlmann 2011). It was prompted, moreover, not only by
academics, but also by governments, international organizations (such as the EU and the
OECD) and NGOs promoting better lawmaking and better regulation programs (Uhlmann
2011).
To be sure, as I said about the U.S., European legisprudence scholars also caution from
painting an excessively rosy picture and argue that there is still much to do (Uhlmann 2011).
Yet, I think we already have sufficient evidence to conclude that we are indeed witnessing a
global revival of legisprudence. We see, moreover, that this revival has interesting cross-
national parallels: in many different jurisdictions and various types of legal systems, we see a
similar story about legislation in legal academia, from distinguished roots, to long neglect, to
revival, to a recent flourishing.

10.3 A Global Future for Legisprudence

The previous section has shown that the revival of legisprudence is a global phenomenon. Yet
this revival mostly began in each country quite separately. As Voermans and Eijlander (1999:
49) observed:

Until recently legislative doctrine and legislative studies in Europe have been quite
nation-oriented: different countries developed their own foci and doctrines in the field of
legislative studies. In a lot of European countries the emancipation of legislative studies,
as a distinct discipline with an independent Status, which differs in nature from traditional
legal studies, has only quite recently brought about. The tradition of sharing and
exchanging legislative research results has only very recently set in.

In more recent years, there have been important efforts in closing this gap in legisprudence
scholarship and in developing more comparative legisprudence, particularly within Europe
(e.g., Carter 2017; Karpen 2012; Karpen and Xanthaki, 2017). 15 Interestingly, these
comparative cross-fertilization efforts are not limited to legislation theory, but are also apparent
in legislative practice, with countries copying “better lawmaking” programs and tools
developed in other policy systems (Bar-Siman-Tov 2015; Popelier 2015). Unfortunately, with
honorable exceptions (e.g., Rose-Ackerman, Egidy and Fowkes 2015), these important
developments in comparative legisprudence have largely been limited to countries within
Europe (Carter 2017).
American legislation scholarship has been mostly inward looking. In fact, it has traditionally
focused only on the U.S. Congress, while neglecting not only foreign legislatures, but even
American state legislatures (Briffault 2003). It appears that American legislation scholars
rarely engage with foreign legisprudence scholarship. For present purposes, suffice it to present
one recent example, which I find particularly telling. In a forthcoming article in the Harvard
Journal on Legislation, Ed Rubin describes “a complete absence of scholarly discussion about
ways that Congress can function more effectively” and about “quality of statutory enactments,
that is, their ability to achieve their desired purpose” (Rubin 2018). He writes:

[W]e have no theory, and a very limited academic discourse, about the best way to design
statutes. Worse still, even suggesting that this topic should be the subject of academic

15
Similar efforts are evident in legislative studies in political science (e.g., Arter 2006; Martin, Saalfeld,
and Strøm 2014) and in regulation studies (e.g., Bignami 2016; Levi-Faur 2004).
I. Bar-Siman-Tov 243

discussion violates a norm of modern scholarship (…). [F]ew scholars [in law or any other
discipline], address (…) normative arguments to legislatures, about the way to draft
effective statutes (…). [T]he academic community has largely ignored the effort to
improve the way that the most important decisions in our legal system are made (Rubin
2018).

These statements about the complete lack of scholarship about quality of legislation,
improving the effectiveness of legislation, and ways to draft effective statutes will probably
leave European scholars befuddled if not dumbstruck. In the past twenty years, so much of the
legisprudence scholarship in Europe (and elsewhere) has been dedicated to precisely these
topics (some examples, out of many others include, Aitken 2013; Drinóczi 2015, 2017;
Flückiger 2009, 2010; Karpen 2016; Mader and de Almeida 2011; Mousmouti 2012; Muylle
2003; Samuels 2013; Voermans 2009; Xanthaki 2001, 2011, 2014). So much so, that European
scholars have assumed that quality of legislation has become an international buzzword
(Mańko 2012; Voermans 2009). The point of this example is not to criticize Prof. Rubin, who
I greatly respect, but to illustrate that even some of the most serious and distinguished
American scholars are often unaware of the legisprudence scholarship outside the U.S.
The dearth of American engagement with foreign legisprudence scholarship is also evident
from the sacristy of citations to this scholarship in American law reviews. According to data I
retrieved on April 19th, 2018 from Washington & Lee’s journal rankings, the most cited non-
American legislation journal (The Theory and Practice of Legislation) received a mere 17
citations in American journals between 2009 and 2016, whereas the most cited American
legislation journal (the Harvard Journal on Legislation) received 942 citations in American
law reviews. 16 In comparison, according to CiteScore metrics from Scopus, which covers much
more non-American journals, these two legislation journals had almost identical CiteScore
metrics. 17
Part of the explanation for this lack of American engagement with foreign legisprudence
scholarship may be cultural. That is, this may simply be one more example of the larger
tendency of the American legal culture to generally refrain from engaging with comparative
law. As Barak-Erez (2006: 539) argued in describing the related phenomenon of American
legislators’ tendency to eschew comparative law:

The United States can generally be described as an almost “export only” legal-political
culture. Generally, bills drafted in the United States are not based on outside models or,
at least, they do not usually rely on such knowledge deliberately. This pattern is related
to a general trend prevalent in the American legal realm to refrain from reliance on
comparative law, including in academia and in the courts. The American Supreme Court
is famous for seldom, if ever, using comparative law, and the same trend is dominant in
the drafting of new legislation.

Yet, the dearth of American engagement with foreign legisprudence scholarship can
perhaps be explained by differences in substantive interest areas between American and
European legisprudence. As I mentioned in Sect. 10.1.2, the American revival of legislation in

16
Washington & Lee’s journal rankings count citations to documents in Westlaw’s JLR database, which
are primarily U.S. articles. Therefore, it provides a relatively accurate indication about the extent that
journals are cited in American law reviews. See http://lawlib.wlu.edu/LJ/method.asp.
17
According to data I retrieved on April 19th, 2018, these two journals had the exact same Citescore,
Citescore percentile, and Citescore rank; with The Theory and Practice of Legislation having a slightly
larger number of citations, but a slightly lower percentage of articles cited out of the number of articles
published. See https://journalmetrics.scopus.com/.
11 The Global Revival of Legisprudence 244

legal academia was largely sparked by renewed controversies about statutory interpretation
methods. Consequently, until relatively recently, American legislation scholarship (and
teaching) has largely focused on statutory interpretation, while dedicating less attention to other
important subjects in the field, such as the legislative process itself and legislative procedure
(Briffault 2003; Garrett 1999; Vermeule 2004; Widiss 2015), legislative methodology and
design (Rubin 2018) or to empirical work on how Congress operated in practice (Garrett
2008a).
In contrast (as mentioned in Sect. 10.2.2), the revival of legisprudence in Europe was not
ignited by a sudden revival of interest in statutory interpretation, but rather by a growing agenda
of improving the quality of legislation. It is therefore not surprising that European
legisprudence has not focused so much on statutory interpretation, and has emphasized other
areas (or sub-fields) within legisprudence. When Noll (1973) revived the field, he highlighted
a division between two major subfields: (i) legislative process, dealing with questions of
process and methods when enacting legislation; and (ii) legislative drafting (Uhlmann 2011).
By 2001, Mader reported: “Within legisprudence various particular areas of interest may be
distinguished: (i) legislative methodology…; (ii) legislative technique…; (iii) legislative
drafting…; (iv) legislative communication [and publication]…; (v) legislative procedure [and
legislative process]…; (vi) the management of legislative projects…; (vii) the sociology of
legislation…; (viii) the theory of legislation” (Mader 2001: 119–120). Since then, a rich array
of sub-fields within legisprudence developed, with different scholars suggesting somewhat
different typologies of these sub-fields (e.g., Karpen 2005 and 2012; Uhlmann 2011; Karpen
and Xanthaki 2017; Bar-Siman-Tov 2018). At any rate, the relevant point is that it appears that
at least in the first decade of their revival, American legisprudence and European legisprudence
have tended to generally focus on other subject matters.
Fortunately, in recent years, this gap in research interests is diminishing. We see, for
example, growing American attention to congressional procedure, legislative rules and the
legislative process (e.g., Bar-Siman-Tov 2010; Bruhl 2003; Garrett 2005, 2008b; Vermeule
2004, 2007; Widiss 2015), as well as legislative methodology, design and drafting (Entrikin
and Neumann 2017; Levine 2017; Seidman and Seidman 2009; Rubin 2018). Moreover, the
recent “empirical turn of legisprudence” observed by European scholars (Ismer and
Meßerschmidt 2016; see also, e.g. Popelier and De Jaegere 2016) is also evidenced in the U.S.
legislation scholarship (e.g., Gluck and Schultz Bressman 2013; Gluck and Schultz Bressman
2014; Nourse and Schacter 2002). Hence, there is growing potential, and greater need, for
cross-Atlantic fertilization in legisprudence.
Finally, there may be additional, more technical reasons for the insufficient American
engagement with foreign legisprudence scholarship. For example, to the best of my knowledge,
most American legal students, and therefore most research assistants employed by American
scholars, use Westlaw and Lexis as their primary, if not exclusive, search engines. Yet, many
of the leading non-American legisprudence publications are simply not available in these two
search engines. Part of the solution is simply alerting the attention of legislation scholars (and
their research assistants) to the need to employ additional search engines (such as Google
Scholar). Yet, part of the solution should come from these non-American legisprudence
journals that are not only absent from some of the major and most widely-used legal search
engines, but also impose quite rigid barriers on the free accessibility of their content. This point
might seem technical, but I believe this is certainly an impediment to the development of a free
and robust global legisprudence dialogue (as well as harming these journals’ impact).
In short, there is still much work to be done to promote a comparative dialogue about
legisprudence that transcends the emerging cross-national dialogue within the EU and its
I. Bar-Siman-Tov 245

member states. And, of course, greater American-European engagement is just one example of
where more dialogue is required. To reach a real global dialogue on legisprudence, particular
emphasis should be given to jurisdictions outside North America and Europe. 18

11.4 Conclusion

This essay has argued that we are witnessing a global revival of legisprudence as an area in
legal scholarship and teaching. It has explored the parallels, and differences, in the
development of legisprudence in the U.S. and Europe. Yet, it showed that despite the
similarities, American legisprudence and European legisprudence have developed quite
separately, with insufficient cross-fertilization. After a century of neglect, the 21st century is
the century of legisprudence. The blossoming of the field is apparent in various parts of the
world. It is now time to facilitate a global comparative dialogue on legisprudence. Hopefully,
this essay will be a first step.

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18
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Chapter 12
In the Law We Trust. Some Thoughts on the ‘Legislative
Gap’ in Legal Studies

Wim Voermans *

Abstract Legislation and the enactment of legislation is of primary importance for the development
of the law in modern jurisdictions. The law depends on it—the bulk of the law is created by way of
legislation. One would expect that this importance is reflected in legal research and education. But in
fact it is not. This contribution looks into the neglect of legislative studies in traditional legal scholarship
and the all but absence of it in academic teaching curricula of law. The scant attention for legislation and
legislative studies illustrates quite well the character of academic legal curricula in most modern Western
jurisdictions; they are more or less judge-centred. The contribution rallies for more scientific-based,
open-minded and future-oriented forms of legal research and academic training.
Keywords Legislative Knowledge • Legalislative Training • Legal education • Law curricula

12.1 The Importance of Legislative Knowledge

Knowledge is key to any service or action in our present-day information societies. For the
creation and development of law, predominantly enacted via legislation, it is no less than
critical. To understand what comes out, one must have—as a legal scholar in the least—one
understanding of what goes in. A legislative process is not a black box or a no go area for
lawyers. But even though the importance of ‘knowledge’ (i.e. something more than mere
information) within and about legislative processes seems almost self-evident, it is, I believe,
still seriously underestimated. Legal scholars and lawyers most of the time are unaware of the
dynamics of the most important law-producer around: the legislature. At best they have some
notion of the legal procedure but hardly any idea of how legislative processes work, what kind
of information is exchanged, what kind of interests are at play and what are the main actors
and their motives.
Legislation nowadays is a truly 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

W. Voermans ()
Universiteit Leiden – Faculteit Rechtsgeleerdheid, Instituut voor Publiekrecht, Staats- en Bestuursrecht.
Steenschuur 25. 2311 ES Leiden (The Netherlands)
e-mail: [email protected]*
12 In the Law We Trust 252

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. And, to boot, legislative drafting is predominantly handled by
lawyers, who are not academically prepared nor trained to deal with the ‘externalities’ of law
and legislation: generally they lack the language and skill to liaise with and benefit from
(insights from) other scientific disciplines.
In most of these parliamentary systems—in and outside Europe—legislation and legislative
studies are still a very underdeveloped academic discipline.2 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), or conservative academic tradition, need not concern us here. It is, however, striking that
most of the ‘legal’ literature on legislation and legislative processes concerns itself with the
(constitutional-legal) procedural rules, rather than with the practical skills of drafting, the
dynamics of policy-cycles (agenda setting, principle agent approaches to delegation, issues of
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. Why is that?
For this we need to take a deeper look in how we train lawyers.

12.2 Judge-centred Academic Curricula in Law Schools

To give a conservative estimate; I think that around 90% of all law in the Netherlands, is created
by and expressed through legislation. And probably even more than that. The Netherlands are
by no means an exception. Figures like these apply for other countries as well. So if law schools
in their legal studies programmes want to teach an understanding of law and the formation of
law, one would expect that they would apportion a large part of their curriculum to law-creation
and formation by means of legislation. This is however, not the case. In fact, in academic 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 Sanderson (2000: 433 ff.) and Leeuw (1995:
19 ff.).
2
Due to what Clark (2012: 331) labels the ‘Tenacity of the University Education Tradition’.
W. Voermans 253

degree programmes in the Netherlands 3 very little attention is actually paid to legislation and
legislative drafting. There is a bit and parcel on legislative procedures and types of regulation
in classes on constitutional law, sometimes there is even an elective course on legislation,
drafting legislation or legislative studies in a master’s programme. But that’s it. So how come?
One initial explanation for this can be found in tradition. Dutch law degree programmes are,
like in other countries I believe, traditionally and predominantly judge-centred (judocentric).
Budding legal scholars are taught to think like a judge, or as barrister, legal counsel or public
prosecutor, or even like a civil servant who needs to know how the mind of a judge works. If
you know how a judge thinks, you can try to influence his or her thinking process—because
judges in this concept are considered the real movers and shakers of the law: the primordial
source and end of it. And this is exactly what the curricula of law degree programmes in the
Netherlands generally do. They teach the basic principles first, guide you on the path to the
sources and the structure of the law and then—usually using case law—demonstrate how a
judge in the case of a conflict (considered a fact) structures a body of facts, provides a legal
qualification (often wrongly referred to as a legal analysis), weighs the interests involved, and
then comes to a conclusion: ‘finds the law’. Students are taught how judges follow a step-by-
step ritual in adjudicating a case, how this is recorded in writing – and how all lawyers should
follow suit if they want to have a proper understanding of the law. The problem solving method
they are taught does not rest upon the idea of drawing an objective conclusion based on a
scientific analysis, but on the general idea of a wise judgment based on what the legal
community sees as valid reasoning and what are considered valid, i.e. authoritative arguments.
When you think about it, we lawyers are a kind of inward-focussed legitimacy club. A club
where your ticket in is a law degree.
This is also partly the cultural explanation for why law degrees in the Netherlands, just like
in countless other countries, have such a special character and why certain elements, which at
the very least one would expect to find in a proper academic curriculum, yielding a university
degree, are completely lacking. For instance, the element of dealing with ‘ordinary’ people, i.e.
people without a law degree – elementary psychology, some basic notions of political science
or sociology. Or any form of scientific training, for that matter, that teaches how to distinguish
objective statements from subjective statements in and outside the law (this does sometimes
occur under the title legal philosophy), let alone understanding how to broadly assess research
produced by others, how policy and legislation are established and what your role can be in
this, and also public finance etc. Absent. At the same time other elements in law degree
programmes are completely over-represented. Most law degree programmes have introductory
courses in criminal law, private law and constitutional and administrative law in the first year,
and these subjects are re-iterated, fleshed-out and repeated in the latter stages of the bachelor’s
programme. The basics are time and again elaborated and deepened. And in most cases master
programmes repeat the same themes and subjects all over again in order to gain a ‘fundamental’
understanding of the law. The same courses pass the review time and time again. You could
almost say that Dutch law degree programmes have a sort of a tantric rhythm: repetition after
repetition.
So what is the reason for this? What is this culture based on? If we want to bring about
changes in law education—a recurring topic in the Netherlands—then it is necessary to have
at least some understanding of the cultural elements behind legal work, law degree programmes

3
University law degrees can be obtained from ten academic institutions in the Netherlands: Erasmus
University Rotterdam, the Open University of the Netherlands, Radboud University Nijmegen,
Groningen University, Leiden University, Utrecht University, University of Amsterdam, Maastricht
University, Tilburg University and VU University Amsterdam.
12 In the Law We Trust 254

and lawyers. We need to understand why it is that in law schools hardly any attention is paid
to the way legislation nowadays is used to intervene in markets, how it influences markets and
society. What its limits are, what its impact is. Why is that? What is the reason for it? Only if
we know that, than we might discuss whether we need to change the curricula. To be frank, I
do believe change is needed because the nature of legal work is changing, just like the law
itself.

12.3 What is the Origin of this Judge-centred Culture?

From first-hand experience, I can tell you that discussing the setup of law curricula is rife with
controversy. A call for more attention to scientific approaches of the law, or more attention for
the way in law actually is formed, enacted and expressed (rather more by the actions of
legislatures than in case law most of the time), rallying for more attention for and broader
perspectives in studying the ways in which governments regulate and try to engineer society
and markets, rallying for any type of ‘innovation’ for that matter, invariably meet resistance.
This is sometimes frustrating, but certainly also instructive. It is interesting to know where the
resistance comes from. There is pretty much general consensus about the analysis that the law
degree programmes in the Netherlands are not up to scratch. For example, it is said they do not
entirely meet the requirements of the traditional legal professions, that they attract too little
talent and are generally not sufficiently academic. 4 But as far I can see, this has not led to
significant changes in legal education.
The elephant in the room here of course is the question: is law a proper academic discipline?
Is it science? Arguably not according to some. Law schools and their universities in the US,
according to Paul Samuelson, share little more than a postal code. 5 Others, like economist
Thornstein Veblen quipped that ‘in point of substantial merit the law school belongs in the
modern university no more than a school of fencing or dancing.’ 6 Surely these are
exaggerations, and legal scholarship and academic curricula in law schools have—in the last
decades for sure—risen above such gloomy outlooks and dismal state of affairs. But still the
fact remains that legal scholarship, from a scientific vantage point, wrestles with an academic
burden of proof which it cannot easily meet. Posner has summarized the current state of legal
scholarship much to the point in noting:

What is missing from law are penetrating and rigorous theories, counterintuitive
hypothesis that are falsifiable but not falsified (…) precise instrumentation, an exact
vocabulary, a clear separation of positive and normative inquiry, quantification of data,
credible controlled experiments, rigorous statistical inference, useful technological by-
products, dramatic interventions with measurable consequences, and above all and
subsuming most of the previous points, objectively assessable – and continually
reassessed – hypotheses. In law there is the blueprint or shadow of scientific reasoning,
but no edifice. 7

The scientific state of the discipline of course spills over into the tuition in academic
programmes. But the programmes and teachers themselves sometimes act as a push back factor.

4
See e.g. Stolker (2014: 92–101).
5
Samuelson (1975: 258), as cited by Stolker (2014: 94).
6
Veblen (2000: 155), as cited by Stolker (2014: 93).
7
Posner (1990: 431–432).
W. Voermans 255

According to some, the straitjacket of traditional legal reasoning, which has trapped students,
lecturers and practicing alumni alike, stands in the way of any form of innovation or change.
Together, we traditionally trained lawyers are all rather ‘brainwashed’ and suffer from a sort
of mass-legal-tunnel-vision – no longer responsive to the open view of the world, to the context
of the law. As a result, university law degrees fall short on two accounts: academic training
and professional training. This may sound rather disheartening, but Dutch sociologist Freek
Bruinsma hits home when he points out that academic legal studies programmes primarily
function as socialisation processes. 8 Students are primarily trained to understand other lawyers
(rather than members of the general public whom the will be working for). Lawyers are first
and foremost trained to think and behave like other lawyers: 9 to understand their future
colleagues. They are certainly not brought up to understand politicians, or colleagues from
other walks of academic life that they have to work with during their professional life. Lawyers
are taught to understand and trust each other and they are more or less taught to distrust
politicians, or other non-lawyers if these elements ‘mess’ with the law. Lawyers are taught and
raised in the belief that the law is the domain and reserve of lawyers—and that the law is only
secure in their hands. 10 Hence they do most of the time have no confidence at all (let alone are
willing to dedicate long hours of study to it) of law that is handled or the outcome of the work
of layman and amateurs like non-lawyer representatives in a parliament deciding on legislation.
Legislative processes and politically inspired legislation are most of the time greeted with cold
winds of mistrust. 11

12.4 Raised to Distrust the Legislature?

The recent Dutch debate on the modern day value of the principle of legality provides a case
in point of this mistrust. One could argue that, as a truly legal principle, with rule-of-law roots,
it would be a lawyers’ darling. The principle of legality in civil law countries keeps
governments in check by requiring a demonstrable legal basis for—in fact—almost all of their
operations. A basis the democratically underpinned legislature provides and most of the time
is the sole authority that can provide it. But, much to my own surprise, it turned out to be
anything but the lawyers’ favourite principle. Quite the contrary. It were in fact the lawyers
that seemed to make a problem of the operation of the principle of legality. This principle had,
in the Netherlands at least, evolved as a serious standard that had affected increasingly more
areas of government intervention, and actions over the last decades. The application of it was
substantially widened in case law and by a provision in the (quite new) General Administrative
Law Act that—at the outset of the new millennium—required a legal basis for government
intervention by way of subsidies and financial support—an area wherein the administration
hitherto had been free to roam on condition it acted within the confines of the budget and legal
principles of careful consideration and such. This way of extending the purview of the principle
of legality did not go down well with a lot lawyers. Even after, or may be due to the extension,
some of them reported that they found the principle increasingly less worth studying: it was,

8
Bruinsma (2008: 2451–55).
9
Marguery (2005: 109–113) clearly explains to what extent in France the cultural element also plays a
role in law degrees. Essentially, legal scholars there are trained to be able to understand other legal
professionals.
10
Loth (2014: 1738–1741).
11
Voermans (2015: 68 ff.).
12 In the Law We Trust 256

they stated, an antiquated and overrated principle.12 And that against the backdrop of heated,
constitutional debates on the principle of legality and its requirements during the best part of
the 19th and 20th century. A total reversal of appreciation within less than a century. Why was
that? The answer may not come as a big surprise. The present-day application of the principle
legality puts parliament and the legislature in the driver’s seat; a bunch of laymen and legal
amateurs at the helm of an apparatus that spills out ever more legislation, with evermore
restrictions to the lawyers core craft: law creation by interpretation and case law. 13 A strict
application of the principle of legality in our day and age only yields to more—as a famous
Dutch scholar said 14—partisan legislation, acts stemming from a fickle and capricious body of
laymen. Worse still: politicians.
There is clearly ‘legal discomfort with the legislature.’ 15 And that is strange because the
law is accorded a central position in present law formation and the administration of justice, as
expressed by the Netherlands government in a recent memorandum:

At the heart of a democratic state under the rule of law lies the fact that law is pre-eminently
the democratically legitimated instrument to impose authoritative standards on society and
assign tasks and powers to the administration. 16

On closer inspection, this is true even more so than ever before. Legislation is actually the
vehicle that to a large extent legitimises law formation in modern relationships. A judicial
basis, the law, still legitimises—and perhaps more than ever—the development of the law
under public law and the government actions based on this. In various ways. Statutory
requirements are not established through random majority decisions, but are the outcome of
balancing interests where political points of view are viewed from both sides in an open forum
according to a transparent procedure. 17 Witteveen points out—with a reference to Waldron—
that disagreement on interpretation, or political disputes, on the occasion of debating and
enacting laws, should not be seen as something negative. 18 The law can in fact can, by virtue
of opposing views and interest, bridge differences by reflecting on various elements in a
discussion leading up to a law and by internalising agreements following a political dispute.
Thus Waldron also calls for a re-evaluation of legislation. 19 A figurehead modern thinker like
Jurgen Habermas also acknowledges that, indeed, legality can contribute to the legitimacy of
the law (even though as such it is something different and cannot in itself be equated to
legitimacy). 20 Not only because people’s representatives participate in the decision making
(input participation) on legislation, but also through the public debate carried out in the process.

12
Besselink, Pennings and Prechal (2011).
13
“For many lawyers, law is respectable and politics is not. To some of these the very idea that law is a
manifestation or type of politics seems almost offensive”, as Tom Campbell (2012: 228) notes.
14
Scheltema (1989).
15
Voermans (2011: 76).
16
See opinion of cabinet «Juridisering in het openbaar bestuur» Kamerstukken II 1998/99, 26 360, nr. 1,
p. 5.
17
Or as Waldron (1999b: 23) puts it: “The modern legislature is an assembly of representatives of the
main competing views in society, and it conducts its deliberations and makes its decisions in the midst
of the competition and controversy among them”.
18
Witteveen (2002: 238).
19
Waldron (1999a).
20
Ashenden (2010: 60) points out that in a historical perspective Habermas has correctly noted that “the
issue of legitimacy in modernity is framed in terms of the democratic genesis of legal norms”.
W. Voermans 257

This principle of discourse – as he calls it – is crucial for the base of support for the law. 21 The
law also commands legitimacy through the legality of the stages and readings of public
legislative procedure it is subjected to prior to enactment (called throughput legitimacy by
Scharpf 22) and through the way in which it offers or attempts to offer a solution to problems
(output legitimacy). So asking for a legal basis for all intervening government acts has an
important direct and indirect legitimizing effect on that act – though this, of course, in itself is
not yet sufficient. Legality does not equal legitimacy. It would be rather silly of me conclude
that the importance for legislation as a source of law is the q.e.d. and that this fact, on its own,
calls for more attention to legislation, legislative studies and drafting in law curricula. It is just
an illustration of what is a miss. With the current structure of the law curricula we are creating
generational blind spots, focusing our attention to wrong part of the playing field. Looking at
the parts where the ball of the law is not rolling, where the main body of the players is not
present. That surely can never be the intention of academic education in law.

12.5 Towards a New Academic Curriculum in Legal Studies?

This contribution is, therefore, not just a simple call for more legislative training or classes in
the curricula of law degree programmes, even though I would be perfectly happy with this
outcome. It is rather more an attempt at a better understanding. I think the analysis and
arguments above demonstrate why we have—for instance—so few courses on legislation in
the law degree programmes, and why it is so very difficult to adjust these degree programmes
to the needs of these new times. It is a cultural phenomenon in particular. As long as law
curricula are mainly structured to train lawyers to understand and convince each other as legal
scholars, with the judge as a role model of the legal scholar, there will be no changes soon.
This change, however, is certainly necessary and urgent since the nature of legal work is
undergoing changes and the professional field is calling for a different kind of academically
trained lawyers. Lawyers of the future, working in increasingly competitive environments,
need more skills and capacities than a few decades ago, as was already pointed out by some
CEOs of the largest Dutch law firms in Amsterdam in 2014. In a (controversial) appeal in a
Dutch newspaper they called for less emphasis on technical strict legal knowledge and
techniques in the law degree programmes in favour of a broader and more multi-disciplinary
programme. 23 They rallied for, what they refer to as ‘T-shaped-client-loving-lawpreneurs’.
Lawyers who can combine legal knowledge (the base of the T) with more general knowledge
of psychology, sociology, political science and economics (the top of the T). Why? Because
everyday problems are too complex to tackle with mere knowledge of law alone. It caused
quite a stir, but their call has already lead to changes in the vocational training of lawyers and
the setup of professional courses lawyers have to follow in order to pass their bar exam. There
is a second reason to take a critical look at law degree programmes. Most universities running
these programmes advocate that they train an academic stance (whatever that may be),
professional skills, and, so most of them claim, also teach students on the cutting edge of
academic research and the latest insights. To subdue students into academic research, even

21
Habermas (1992: 187–207).
22
Scharpf (1999) distinguishes three ways in which decisions can acquire legitimacy: ‘input legitimacy’
(participating in the decision), ‘throughput legitimacy’ (via an agreement on the procedure) and ‘output
legitimacy’ (conviction through the – beneficial – impact).
23
NRC Handelsblad 17 maart 2014 http://www.advocatenblad.nl/2014/03/18/opleiding-jurist-moet-
breder-2/
12 In the Law We Trust 258

involve them. Arguably so. Especially the scientific academic part of the curricula has room
for improvement. For sure, legal research has become far more scientific in the past fifteen
years (although we are certainly not there yet) but it is not really included in the academic
training in the way it should be. Research deserves a rather more substantial presence in the
programmes. Especially the research that pays more (than traditional) attention to the context
of the law (international dimension, more comparative law, general impact of the law) and the
type of research that acknowledges that you cannot successfully study that context and impact
by taking a merely legal perspective. For this it is important to use truly scientific methods and
approaches to acquire in-depth-knowledge about law, to use interdisciplinary and
multidisciplinary lenses to legal problems and to use methods other than merely legal methods.
This is not to say that all legal researchers will have to hold multiple degrees in different
disciplines in order to be effective or that legal researchers will always have to work in
multidisciplinary teams with other academically trained scholars. It does say that we will
increasingly need (and see) a more integrated approach to legal research. More attention for
the realities of the law (‘law in action), and more focus on, in particular, social science methods
that will help us to find out about that reality. In his inaugural lecture in 2014 ‘Kijken naar het
recht’ (Looking at the Law), Dutch professor in social psychology Kees Van den Bos
recommends an integrated approach for legal research and to reflect this in legal education. 24
He thus – perhaps unintentionally – agrees with the calls of the CEOs of the Amsterdam law
firms who articulated the new requirements for the changing legal work.
So what would this look like? No, budding lawyers don’t have to become psychologists,
economists or politicians, but it would be good if they could understand the basics and the
insights these disciplines bring to the fore. It would allow them to assess whether that type of
research has been carried out correctly, or if the outcome is correct or not. Training students to
become true academic professionals. Because if you want to understand what the law is, its
significance in society, and what you as a professional can do with it, then I think it would be
more sensible to look in particular at the context and the impact of law, law formation and the
administration of justice. In the curricula the theory of law (its objective, what it represents,
but also what it can/must achieve) should be used far more to consider the reality and context
of the law. What does it mean these days? What is its impact on our society, on our markets?
To what extent does law contribute or not to welfare, wealth, economic growth, trust and social
cohesion. Why do we sometimes comply with the law, and sometimes not? What is the
significance for acceptability of government action? Attention to the roles and context of the
law is essential.

12.6 Learning from Experience as We Go along?

For the practice of legislation and legislative drafting in today’s dynamic and volatile
legislative processes this lack of dedicated academic training comes at a cost. Where legislative
professionals—mostly academically trained lawyers—used to learn their skills ‘on the job’ via
a system of patronage. This makes ‘knowledge management’ within the legislative process
vulnerable, all the more so because it is often just one or a few policy-making officers or
legislative lawyers that possess the detailed knowledge of and about important legislative files.
This individual knowledge of legislative projects is recorded or used rarely as such and is
enshrined in the individual civil servants’ experience. When they leave office, they take their

24
van den Bos (2014).
W. Voermans 259

knowledge and experience with them – resulting in serious knowledge loss of the department.
In a situation of increased job mobility this tends to become a serious problem indeed.
A Dutch Legislative Review Committee already more than a decade ago signalled this
problem along with other serious defects as regards the learning capacity 25 of the ministerial
legislative processes. Already back in 2000 this Committee warned against complacency and
passiveness in the field of training and the permanent education of legislation professionals. At
the time it is largely left to the civil servants, tasked with the drafting of legislation, themselves
to determine what further training courses they will attend. Even though training courses were
on offer, these were not broadly attended. 26 On occasion the ministries themselves offered
training courses but only in a more or less haphazard way. 27 More generally systematic and
focused attention as regards the quality for legislation and legislative drafting was substandard.
At the time there were hardly any protocols on the actions to be taken in various legislative
processes and there was no systematic reflection on formulas or ‘best practice’ scenarios for
such processes on the basis of experiences gained or knowledge gathered from process
evaluations.
In the Review Committee’s words:

(...) there is no institutionalised instrument to improve processes, if necessary. This is

because individuals may learn from their actions, but in an organisation actions are
improved only if a procedure for improvement has been laid down and is communicated.
Further, the possibilities offered by information and communication technology in the
field of knowledge collection and exchange are used only to minimum degree. This is
true of knowledge collection and exchange within ministries, and definitely between the
ministries. 28

The analysis and advice did not fall on deaf ears and the Dutch government has since then
endeavoured to improve on the situation. There is more cooperation between ministerial
departments, quality ensuring protocols have been put into place and legislative drafts are
assessed and reviewed in different ways and from different angles (e.g. forms of regulatory
impact assessment). Drafts are widely consulted and are submitted for e-consultation to the
general public as a general rule (ever since 2014). Another notable result is the establishment
of the Academy for Legislation. Ever since 2001 this institute is set up as a training facility for
vocational training of legislative drafters working for the national government, with
responsibilities in the field of recruitment as well. Every year 20 freshly graduated,
academically trained lawyers are selected for a two year post-graduate training programme
offered by the Academy. For two days a week these recruits are trained in the Academy and
for the remainder of their workweek they work at a ministerial department as a civil servant to
be trained further ‘on the job’. After two years they take a final exam and on graduation receive
a permanent position in a department. The Academy offers other classes as well for more
experienced civil servants as well and other groups of legislative drafters. The programmes of

25
This refers to a number of aspects of the building and maintenance of collective memory
(method and substantive aspects) and expertise (knowledge management and staff policy). See
Legislative Review Committee (2000).
26
Legislative Review Committee (2000: 34).
27
Examples include the in-company training courses on legislative drafting and legislative method and
the legislation seminars that are organised, for example, by means of the external education bureaus
within the Ministry of Transport, Public Works and Water Management (now: Infrastructure and
Environment) and the Ministry of Social Affairs and Employment.
28
Legislative Review Committee (2000: 36).
12 In the Law We Trust 260

the Academy are a success, at least that is the outcome of different evaluations over the past
15 years – the institution in the meantime is well established. The Dutch ministerial
departments and other institutions seem to be well satisfied and report that it is worthwhile the
effort and investment. Having a central facility even proves to be cheaper than having
decentralized courses and training. Before 2002 they had to invest quite substantial funds in
permanent education of their staff. The academy pays off in this respect: on the whole it is
cheaper than all of these individual courses from the past. The programme itself was reviewed
by the Dutch and Flemish Academic Accreditation Authority in 2005 and 2010 and accredited
as a sound academic body. Due to this accreditation diplomas of the Academy have academic
standing. A nice feat indeed. But it does beg the question: do you need a special and dedicated
training institute to do the job? Why do universities not jump to the opportunity themselves
and insert elements of legislative drafting, elements of legislative studies in their legal
curricula? The Dutch post-doctoral training programmes for legislative drafting are, by the
way, not unique in the world. They were more or less modelled to the examples of the William
Dale centre of the Institute of Advanced Legal Studies of London University and programmes
in Italy (Rome Isle) and summer courses in New Orleans at Tulane University. Still more
schools and training centres exist in this field worldwide. One could say that these schools
exemplify sound practices, that they promote the training of drafting skills and the quality of
legislation in a very sensible way. That they present good ways to prevent braindrains in the
legislative process and that they are helpful for systematic knowledge management and transfer
of expertise in legislative processes. One could say all that, as I said, for good reasons. One
could also reason to the contrary and say that the setup of these post-doctoral programmes and
institutions gives evidence to the fact that there is something amiss in the regular curricula of
law schools. When academic legal teaching programmes would teach what the law is really
about, there would be no need for post-graduate legislative patches—graduates would be fully
able to understand what legislation and the sort of law it expresses was all about. Thus trained
they could enrich the departmental legislative bureaus with their fresh academic insights from
day one. Saving money now and enriching academia in the process. Something to consider.

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Chapter 13
Taking Modern Legislation Seriously: Agency Rights as a
Special Challenge

Pierre Guibentif *

Abstract The functions of legislation are diverse and its actual impact on its addressees may vary
considerably, in relation to different types of legal mechanisms. So legisprudence has to develop
scholarship specialized in those different legal mechanisms. One mechanism deserving particular
attention are the legal rights, and among them, what could be named agency rights. The purpose of the
present paper is to put forward a tentative legisprudential discussion of such rights. After having defined
agency rights by locating them in a typology of legal rights, it seeks to reconstruct their societal
functions, analysing them as taking part in a broader set of mechanisms, which developed over the last
centuries, and which are supposed to enable individuals to act as autonomous and productive members
of the societies to which they belong. It pays particular attention to the role of specialists, and among
them of jurists, in the functioning of these mechanisms, both as holders of agency rights, and as
participating in the empowering of those who are expected to exercise their agency rights. It concludes
arguing that legisprudence, by participating in the improvement of legislation guaranteeing these rights,
might be playing a crucial role in the improvement of democratic institutions.
Keywords Legislation theory • Fundamental rights • Agency rights • Professional specialization •
Democracy

If legislation has been, up to recent years, a somehow neglected topic in jurisprudence (Bar-
Siman-Tov 2018; Chap. 11 in the present volume), there is nowadays one sub-topic even more
neglected, despite the relevance it has had in former legal-philosophical debates: the
relationship between legislation and ordinary citizens. One could justify the current lack of
research on this topic by the fact that legislation has to be dealt with by specialists, the jurists
– the “specialist law-detectors” (Waldron 1999: 14). Research, under these circumstances,
should concentrate on the access to the legal texts by those specialists. This argument, however,
is not acceptable for several reasons. Firstly, there is a – legal – principle according to which
everybody is supposed to know the law (“Nul n’est censé ignorer la loi”). Secondly, many
statutes are drafted with the aim to be read directly by their addressees, and not necessarily by

P. Guibentif ()
Dinamia’CET-IUL, ISCTE-University Institute of Lisbon
Avenida das Forças Armadas, 1649-026 Lisboa (Portugal)
e-mail: [email protected]*
13 Taking Modern Legislation Seriously 264

the specialists advising them in legal issues. A historical example is the French Civil Code; 1
among other contemporary examples are constitutional texts. 2 Thirdly, now that all legislation
is available on line, it has become much more probable than in the past for non-jurists to have
a direct contact with legislation. 3
This is why legisprudence has to discuss, among other domains of inquiry, the issue of the
relationship between legislation and non-jurists. Among other concerns guiding the production
of legal texts, adequate emphasis has to be given to the question of how to formulate them, to
identify them, and to circulate them, in order to facilitate the access to and a useful
understanding of their content by non-specialists.
In approaching this issue, legisprudence should take advantage, as far as possible, of the
knowledge about the reception of legal texts by lay citizens provided by socio-legal research.
This research domain, however, comparatively, is not among the domains that deserve more
attention from the part of the researchers’ community (Baer 2015: 220). It is, for the moment,
not an institutionalized domain of specialization. None of the Working Groups of the Research
Committee on Sociology of Law of the International Sociological Association, and none of the
Collaborative Research Networks of the influential American Law & Society Association
addresses directly the topic of access to and understanding of legislation by lay citizens.
However, several research projects are currently being carried out and we are allowed to expect
an intensification of these efforts. 4 The present paper understands itself as preparing a modest
contribution to this trend.
Our main assumption is that the design of research in this domain should take in due account
the considerable diversity of legal mechanisms. Classically, research about the knowledge and
opinion about the law has concentrated on legal texts defining obligations and prohibitions.
Another type of legislation deserves special attention, considering its central relevance in
modern societies: texts recognizing rights and liberties. To mobilize the guiding topic of this
volume: one misconception, at least of sociological research focusing on legislation, if not of
legisprudence in a broader sense, is to neglect the issue of rights (de Munck 2017: 2). In this
paper, as a necessary preliminary and comparative step, I would like to briefly discuss the
socio-legal approach to the relationship of citizens to texts stating legally binding obligations
or prohibitions (Sect. 13.1), and, in the main section, to put forward a case for the socio-legal
and legisprudential approach of the relationship of citizens to texts establishing rights and,
among them, what we will call here agency rights (Sect. 13.2).

1
Among other references, Hespanha (2003: 247) with a discussion of the difficult relationship between
democratic principles and the defence of a professional elite legal culture.
2
As an example, the Swiss Constitution adopted 1999; see the Message du Conseil fédéral introducing
the new text (Conseil fédéral 1996: 120) : “Écrit dans un langage simple, le projet constitutionnel est
intelligible et bien structuré. Le citoyen s’y retrouve”.
3
About the access to legislation through the internet, Oliver-Lalana (2011: 314 f.; 333 f.); about the
Portuguese case, Almeida et al. (2014: 180). For evidences about the consultation of law by non-
specialists, see Helen Xanthaki’s piece in this volume (Chap. 2).
4
See, for example, the session “Legal Encounters: When People Meets the Law” organized by Quentin
Ravelli within the framework of the 2018 RCSL Conference, Lisbon, September 2018 (see the
Conference Programme available on https://www.rcsl-sdj-lisbon2018.com). Actually, at the occasion of
that Conference, the creation of a new Working Group dealing with the lay knowledge of law was
announced.
P. Guibentif 265

13.1 Legislation on Obligations and Prohibitions

It is definitely an important question to know to what extent the addressees of the law are aware
of obligations and prohibitions stated by the law, what exactly they know about it and how they
acquire this knowledge. These questions have already been tackled by socio-legal research,
inspired in particular by the seminal work of Patricia Ewick and Susan Silbey (1998).
The relationship between non-jurists and jurists in such issues may be qualified as relatively
simple. Jurists are there to inform more precisely about what is compulsory and what is
prohibited. They may indeed play an important role in the design of strategies of the addressees
of a certain statute to deal with the constraints emerging from legal obligations and prohibitions
(classical discussion of this topic: Parsons 1954). And they play an important role as soon as
legal measures are taken in cases of alleged non-compliance, or infringement. In such
situations, jurists assist the addressee of the law in the specific context of legal procedures
aiming at sanctioning the cases of non-compliance or infringement.
As an important development of this model, we could mention researches that take into
account of the power relation which may develop between the specialized jurists and the non-
specialized citizens. This is one of the main topics discussed by Bourdieu in his paper “The
Force of Law”, which tackles the “monopoly” of the jurists (Bourdieu [1986] 1987: 828).
Laws entitling certain persons with the right to a certain provision, which are texts stating
obligations for certain entities to supply the provision, raise similar questions. The interested
person may know, or not, that she/he is entitled to benefit from that provision, while insufficient
knowledge may lead to the “non take up” of the provision. Jurists may play a role in procedures
aiming at enforcing the right to a certain provision, in the case it was refused to the interested
person. 5
Things are more complex if the obligations or prohibitions are controversial. In such cases,
the question is not only to know whether the addressee knows the legal text and does take it
into account in her/his activities. It is also to know to what extent she/he adheres to the text or
if she/he adheres to another position. And it is important to know how the position assumed
has been developed and maintained; if a person has links to existing movements defending that
position, how such movements are structured, what are their discourses and strategies. In such
contexts, the question arises of the impact – symbolic effect (van Klink et al. 2016) – of the
law – and, one might add, of the political process from which a certain law is the result – on
the actual opinion of citizens, and on the discourses and strategies of movements involved in
the debates about these obligations and prohibitions.
In such settings, jurists may play different roles. They not only may defend their clients, but
also actively seek, at the occasion of the defence of their clients, to give visibility and force to
a political positioning towards the norms at stake, or seeking to create a context favourable for
a new political debate about the text, and to give emphasis to arguments favourable for the
position they defend (cause lawyering; see Delpeuch et al. 2014: 122 f.).
The main aim of this short review of researches about the relationship between the citizens
and the law is, before approaching a more specific topic, to identify the main domains of
discussion in the approach of this relationship. The three main domains are the entities in
charge with the implementation of the law, the specialized legal professionals, and the plurality
of non-legal discourses surrounding the law, three realities that condition the relationship
between the citizens and the law.

5
References of several researches on this topic, Delpeuch et al. (2014: 69 f.).
13 Taking Modern Legislation Seriously 266

13.2 Legislation Recognizing Agency Rights

Legal norms recognizing rights and liberties raise quite different questions. As far as the
understanding of the law is concerned, the question is not simply to know if a person is well
informed about what she/he is entitled to do, but what, more concretely, she/he will do, taking
advantage of the room for action opened by the legal entitlement. What she/he will do will
depend, in an important measure, on non-legal norms. And the role of jurists is here less simple
to characterize than it is the case for other types of legal norms. Indeed, the way the right has
to be understood is an issue that, in most cases, does not specifically lie in the domain of
expertise of jurists. I would like to discuss the legislation concerning this kind of legal norms
first (Sect. 13.2.1) defining more specifically the type of rights at stake, and then examining
(Sect. 13.2.2) what is the specific societal function of legal norms recognizing rights; (Sect.
13.2.3) what is, in the specific case of this type of norms, the relationship between law and
other normativities; (Sect. 13.2.4) what could be here the role of jurists; (Sect. 13.2.5) what are
the implications of this discussion for legisprudence.
In this general discussion of the relationship between citizens and legislation recognizing
rights and liberties, we will not devote a specific point to the role of implementing entities.
Indeed, rights and liberties demand to be actualized in the first place by the citizens themselves,
in very different settings, and the fact of this actualization by the citizens deserves to be
discussed for itself, before considering – which is definitely also a relevant topic – the practice
of, where it is the case, entities to the functioning of which the activity freely exercised takes
part (one obvious example: universities), or entities in charge with the supervision of the
exercise of these liberties. 6 Another necessary addition to the present paper is the discussion of
the material conditions and of the social contexts in which citizens develop their activities. The
question of these material conditions leads us to the already abundantly discussed issue of the
social rights (Marshall [1950] 1992; Sen [2004] 2008). A first explanatory approach has been
proposed in another paper (Almeida 2014: 193 ff.); the present paper focuses on the individual
addressees of the legislation, and on the question of the way they may use legislation as a
resource.

13.2.1 Agency Rights as a Specific Type of Subjective Right

In a first step, in order to better define the scope of the following discussion, it is necessary to
characterize more precisely the different types of legal rights. What matters here in this
legisprudential discussion are the formal characteristics of the mechanisms necessary for
guaranteeing the rights, not their material purpose. This is why we have to depart from classical
typologies, which distinguish rights according to their purpose and to the process of their
historical emergence, such as the typology put forward by Thomas H. Marshall ([1950] 1992),
distinguishing civil, political and social rights.
A possible methodology in the construction of such a typology is to take as a starting point
the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000
and included in the Treaty of Lisbon, signed on 13 December 2007 and entered into force on 1
December 2009.
As a first type of legal rights, some of the rights included in the Charter could be named
protective rights requiring abstention. They aim at protecting their holders against acts from

6
For a summary approach to this topic, see Almeida et al. (2014: 188 ff.).
P. Guibentif 267

the part of other persons likely to harm them, in the worst case to destroy them, in less severe
cases to limit their resources and means of action. In this category we have the “right to life”
(Article 2), the “right to the integrity of the person” (Article 3), the “right to liberty” (Article
6), or the “right to property” (Article 17). They correspond to prohibitions of behaviour
addressing other persons, the most important of them being usually included in national penal
codes. Some are included in the EU Charter itself, such as in the case of “slavery and forced
labour” (Article 5), “collective expulsion” (Article 19), and “child labour” (Article 32).
A second type includes the rights that, with the same aim to guarantee to a certain person
conditions of survival, means of action, and protection against all kind of constraints, entitle
that person to claim for a positive act in her/his favour, from the part of other persons. They
could be named protective rights requiring action. Here an important distinction is the
following: what is demanded from the part of the other person may be a – set of – material
act(s), which will have to take a specific shape according to a particular situation of necessity
or vulnerability; or it may also be the payment of a certain amount of money.
As examples of the first category, we have the right of children to protection and care
(Article 24), the “right to benefit from medical treatment” (Article 35). A subcategory here are
the rights corresponding necessarily to positive acts from the part of certain persons, while the
formulation of the right does only suggest a very general characterization of the act likely to
be demanded. This is the case for the “right to security” (Article 6) or for the somehow
implicitly recognized right to “environmental protection” (Article 37).
Examples of the second category are to be found the domain of “Social security and social
assistance” (Article 34).
Even if it is probably impossible to draw a sharp line separating the third type now to be
introduced and the two types previously defined, it makes sense to mark here a difference. The
aim of rights of this third type is not only to protect; it is to increase resources of all kind likely
to enable the person to develop her/his own activity – let us name them empowering rights.
The resources they guarantee can have as a focus the person itself and its own capabilities.
They also may consist of the possibility for a person to count on the cooperation with other
people. In many cases, such rights require action from the part of other people. An obvious
example is the “right to education” (Article 14); another is the “right of access to placement
services” (Article 29). When the relations of a person with other people are at stake, such rights
also may correspond to prohibitions, addressing mainly the states, which should not hinder the
establishment of certain relationships: this is the case for the “right to marry” (Article 9), the
“freedom of assembly and of association” (Article 12), the “right of collective bargaining and
action” (Article 28). Combinations between the two types of responding mechanisms –
obligation of positive action and prohibition – also are possible, as in the case of the “freedom
of information” (Article 11), which requires both positive action from the part of existing
information media, and abstention from the part of major social actors, which should respect
the independence of these media.
One could attribute to this type of right the “right to respect for (...) private and family life”
(Article 7), the “right to the protection of personal data” (Article 8), since a protected private
sphere may be considered – and historically has been considered, as we will see – as a condition
for the development of a person and for the preparation of her/his means of action.
A specific case likely to be interpreted as combining personal and social empowerment is
the “freedom of religion” (Article 10), since the belonging to a religion implies at the same
time a certain individual education and the belonging to a certain community.
13 Taking Modern Legislation Seriously 268

Political rights form a forth type of right: among them, in the EU Charter of Fundamental
Rights, the right to vote and to stand as candidate for a political office (Articles 39 and 40). 7
Political rights are comparable to the rights of the third type, in the sense that they are likely to
enhance the means of action of a certain person; more precisely by entitling this person to
participate in the definition of her / his conditions of life and action. Differently from the rights
belonging to the three other categories, political rights, however, have as their main purpose to
allow the interested person to act her / himself in a certain way: to vote in a certain way or to
participate personally in the management of public affairs, which brings us close to the fifth
type of rights.
If we have highlighted a third type of rights, empowering rights, it is because it emphasises
the meaning of the whole typology, helping to qualify the fifth type. Indeed, empowering rights
allow people to accumulate resources for action, beyond the basic resources guaranteed by the
protective rights. If the accumulation of resources is guaranteed, it is because, in principle, the
investment of these resources in concrete action is protected too. So a fifth type of rights
recognizes the freedom of people to develop by themselves, beyond the specific domain of the
political sphere, certain activities. We could name them agency rights. Belonging to this fifth
type of right we find in the EU Charter, on the one hand, the “right to found a family” (Article
9), and, on the other hand, the “freedom to choose an occupation and right to engage in work”
(Article 15) and the “freedom to conduct a business” (Article 16). The relationship between
these two categories of rights is recognized at article 33, where the reconciliation of family and
professional life appears as a principle. Also object of such agency rights, some more specific
activities are mentioned, also protected as free activities: the “media” (Article 11) and “arts and
scientific research” (Article 13). See also the mentions of the “academic freedom” (Article 13)
and of the “freedom to found educational establishments” (Article 14).
With some effort of interpretation, one other domain of activity could be included here:
activities taking place within the legal system. Indeed, “everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal previously
established by law” (Article 47; our emphasis).
The differentiation of the five types of rights proposed leads to the following picture: the
set of fundamental rights recognized by the EU Charter has at its focus the following general
principle, founding the agency rights: everybody has the right to actualize her/himself in an
activity contributing to the wellbeing of the collectivity. Other rights can be considered as
helping the implementation of these agency rights.
Arguably, this general principle also inspires three additional types of rules.
Firstly, the principles of equality and non-discrimination (Articles 21 and 23): Indeed, not
to give equal access to everybody to the activities where people can realize themselves means
that some people are prohibited to realize her / himself in a certain domain of activity, or only
under conditions that will make her / him experience her / himself as being recognized for what
she / he does at a lower level, compared with other people. Actually, the principle “to be treated
as an equal” is considered by Dworkin as “to be fundamental under the liberal conception of
equality” (Dworkin 1978: 273). We will have to come back to this reasoning.

7
The EU Charter of Fundamental Rights does not include a general formulation of the political rights
comparable to the one to be found in the International Covenant on Civil and Political Rights, article 25:
“Every citizen shall have the right and the opportunity (...) without unreasonable restrictions (...) to take
part in the conduct of public affairs, directly or through freely chosen representatives.”
P. Guibentif 269

Secondly, the regulations about abortion: at the root of these rules is the right of women “to
decide independently in all matters related to reproduction”,8 which relates to the right for a
woman to decide the life she wants to live as a woman; in other words: how she wants to
actualize herself as a woman.
Thirdly, some rules can be interpreted as developing the right to self-actualization, in the
sense that they recognize the right of a person to live one’s life according to one’s sexual
orientation or gender identity. 9
The discussion of the foregoing typology leads to the following conclusion. Modern legal
systems include rules that give people rights to freely develop substantial activities, and these
rights can be considered as an essential justification for the complete set of fundamental rights
recognized by these legal systems. This reasoning has actually already a long history. It
corresponds quite precisely to the one defended by Alfred Marshall, quoted by Thomas
Humphrey Marshall: Alfred Marshall admitted the possibility of a progress that would bring
about conditions for everybody to, “by occupation at least, be a gentlemen” (Marshall [1950]
1992: 5). Observing in particular skilled artisans, he saw them “already rising towards the
condition which he foresaw as the ultimate achievement of all. They are ‘steadily developing
independence (...) and steadily increasing their grasp of the truth that they are men, and not
producing machines. They are steadily becoming gentlemen’” (Marshall [1950] 1992: 5). In
the meantime, the recognition of the quality of “gentleman” has been legalized by what we
named agency rights. The reasoning of Dworkin, when discussing the “distinct liberties”
nowadays established, is comparable to the one of Alfred Marshall. By treating people “as
equals”, Governments treat “whom (they) govern with concern, that is as human beings who
are capable of (...) forming and acting on intelligent conceptions of how their lives should be
lived” (Dworkin 1978: 272).
A closer look at the above reconstructed typology reveals that agency rights do not only
define the main aim of the set of fundamental rights; they also play a crucial role in the
implementation of many of these rights. The link between agency rights as an aim and agency
rights as means is best visible in Article 11 of the EU Charter, devoted to the “Freedom of
expression and information”. In the same phrasing, this article recognizes (i) the right to
“receive (...) information and ideas”, information and ideas that are likely to strengthen the
capabilities of those who work or conduct a business, and to (ii) the right to “impart
information”, a mention that is completed in the second paragraph of the same article, which
guarantees the “freedom and pluralism of the media”. In other words, it is assumed that an
empowering information, likely to help those who have access to it to more intensely exercise
their agency rights, has itself to be produced freely, as the exercise of an agency right. A similar
connection can be established between the “right to education” (Article 14) and the “freedom
to found educational establishments” (Article 14) or the “academic freedom” (Article 13).
Agency rights had to be duly identified because, contrarily to other rights, they do not
correspond directly to obligations or prohibitions of behaviours likely to be substantially
defined by the law itself. Compliance, in the case of agency rights, requires new acts from the
part of the holders of the rights – as well as, as we could see, from the part of the people in
charge with the empowerment of them – which have to be imaginatively designed by their
authors. So the implementation of these rights generates situations which analysis requires
models very different from those shortly discussed in the previous section (Sect. 13.1).

8
Official Website of Human Rights Watch: https://www.hrw.org/legacy/women/abortion.html
9
About the Portuguese case, see the new legislation passed by the Parliament in April 2018, replacing
Law Nr. 7/2011 of 15 March 2011.
13 Taking Modern Legislation Seriously 270

At the moment we start a discussion of agency rights in legisprudence, it is worth trying to

back the relevance we were led to give to agency rights by authorized references of legal theory.
Here we shall limit ourselves to two references. Dworkin’s defence of the principle of equality
points in the direction of agency rights, since what is at stake is, as already quoted, equality
between human beings recognized as “capable of forming and acting on intelligent conceptions
of how their lives should be lived” (Dworkin 1978: 272). Hart, when discussing the secondary
rules that define modern legal systems, qualifies them as “rules conferring powers” (Hart
[1961] 1994: 26, 80), i.e. rules entitling and committing those involved in the operations of the
legal systems, the legal professionals, to develop autonomously a substantive activity. So
agency rights, indeed combined with duties, are seen, in particular, as playing an essential role
in the production of the modern legal systems.

13.2.2 Agency Rights and Modernity

Agency rights are a special type of subjective rights. Niklas Luhmann has shown (Luhmann
1981) that the concept of subjective right is a specificity of modern law. One of the
characteristic of the concept on which he draws our attention is that it makes possible
something that was impossible in the Roman legal culture: to formulate entitlements without
necessary mention of corresponding obligations (Luhmann [1970] 1981: 362). 10 This is
precisely what is necessary, as we saw in the previous sub-section, in the case of agency rights,
where the emphasis is on the acts made possible, and not on the prohibition to hinder or prohibit
such acts. This is why the legal concept of subjective right has been used in the Revolutions of
the late 18th century to formulate the texts supposed to establish the foundation of the new
democratic political order: the Declarations of Rights (Habermas [1963] 1974). Among them,
we find agency rights which offer individuals possibilities of action, and, as rights are
recognized by the law, i.e. by the nation, possibilities of an action recognized by the nation; an
action that may be, in turn, an action beneficial for the nation. 11
Compared with the agency rights we could identify in the contemporary EU Charter, agency
rights were at that time formulated in still very general terms. The Declaration of Independence

10
Additional references in Guibentif (2013).
11
A statement explicit in this sense is made, in the course of the French Revolution, by the at that moment
of history president of the Parliament, Boissy D’Anglas, in defence of a constitution draft recognizing,
for the first time in the process of the French Revolution, the right to privacy, formulating what the
Nation is entitled to expect from the part of those to whom it recognizes, among other rights, the right
to privacy: “Let us reward those simple and private virtues, which enchantment is of all moments, which
benefits are of all hours; let us honour the good son, the good friend, the hard-working and faithful
spouse. Decency should obtain roses from your part, and innocence a crown of flowers. Call beneficent
the man who, in his own poverty, did host the old age or the abandoned infancy; the one who did enrich
his country with a useful discovery, who did introduce, on its territory, a new kind of culture, or did
succeed in making sprout a plant unknown by its agriculture. Do not spare efforts for your celebrations
to be moral, and your rewards to be political. The love of glory, peaceful virtues, the attachment to
private duties, here are the foundations of a republican government, here are the motivations you have
to use” (Projet de Constitution pour la République française et discours préliminaire prononcé par
Boissy-D’Anglas au nom de la Commission des Onze dans la séance du 5 Messidor, an III, imprimé par
ordre de la Convention nationale, Paris, Imprimerie de la République, Messidor, an III [1795]; available
from http://books.google.pt/books?id=gh9CAAAAcAAJ&hl=pt-PT&source=gbs_similarbooks
[Accessed February 2018], p. 74, our emphasis; document analysed in the course of a research on the
genesis of the right to privacy, to be published soon).
P. Guibentif 271

of the United States mentions in its preamble the “inalienable right of (...) pursuit of happiness”;
the French Declaration of the Rights of the Man and of the Citizen recognizes the “Liberty (...)
of doing anything which does not harm others”. More specific agency rights will appear in the
course of the constitutionalization process that takes place over the 19th and 20th Century. Such
more specific agency rights do participate in the production of what Axel Honneth calls “social
freedom” (Honneth [2011] 2014: part C.III). Which means the freedom, not only in the sense
of not to be conditioned or constrained by anybody else to act in a certain way (negative
freedom); not only in the sense of being able to act according to one’s own will (reflexive
freedom), but to act, beyond these two conditions, in a way which will make sense in the view
of others; to contribute, using the apt phrasing of Waldron, in “action in concert” (Waldron
1999: 157). In a way which is likely to be received as a constructive input from the part of other
people; in a way that makes the acting person experience her/his action as productive, as a
moment of self-actualization. This brings Honneth close to the reasoning of Sen, who relates
rights to capabilities (Sen [2004] 2008: 150; Sen 2009: 381). 12
At this point, it is worth expanding upon the characteristics of societies that recognize this
type of individual agency rights. Perhaps their main characteristic is what Touraine has called
“historicity” (Touraine 1984: 222). Such societies experience themselves as permanently
changing, and as able to, at least to some extent, control the direction of this change.
Considering the case of the Western world, one can argue that two processes were experienced
there over approximately the same period of time: on the one hand, the fact that societies were
changing, territorially, among other processes with the conquest of new territories – for
instance in the Iberian Peninsula – or with the colonization of newly discovered parts of the
world; and intellectually, with the Reform; and, on the other hand, the fact that individuals had
the potential of developing new capabilities, notably in the domain of art and science. The
Revolutions of the end of the 18th Century did somehow establish a link between these two
experiences: societies were able to change, because they were composed by individuals able to
develop themselves, taking advantage of the liberties recognized to them by the society. 13
Having reminded this characteristic of modern societies, we are in condition to relate the
reasoning here defended with another one, defended elsewhere in the present volume, about
the ideological functions of theories of legislation (Van Klink 2018; Chap. 4 in this volume).
Taking the work of Paul Ricoeur as a starting point, Van Klink identifies three functions of
ideologies: to produce a distorted picture of reality, to legitimate authority, and to preserve
social identity. Let us take apart, for the first steps of the discussion, the “distorting” function;
the functions of legitimization of authority, and of collective identification, may be considered
as necessary for all types of human societies, 14 which all depend on mechanisms defining them

12
For a critical appraisal of Sen’s theory of human rights, considering its individualistic bias, see Bessy
(2007: 304). The necessity of successful cooperation for the actualization of individual projects,
emphasized by Honneth’s concept of social liberty, and the possibility of a will to contribute directly to
the collective wellbeing, compatible with Sen’s reasoning, could help to reduce this bias.
13
An intriguing question which will not be discussed here is the following: are completely different
evolutions – experience of societal change without changes at the scale of individuals, or vice-versa –
possible and could such different evolutions have taken place in other regions of the world? Positive
answers to this question could deeply change the conditions under which the discussion introduced in
the present essay would have to be carried out. But this discussion must not dispense the analysis of our
own historical experience. So what is introduced here is a necessary, even if not sufficient, part of the
work required for a critical theory adequate for the current state of the debates in social sciences.
14
For the purpose of this paper we combine two definitions of society: on the one hand national societies,
corresponding to the scope of application of national legal systems, and the world society. Migration
13 Taking Modern Legislation Seriously 272

as differentiated entities – function of identity definition – and on mechanisms maintaining

some social control within that entity – function of authority legitimization. Modern societies,
as societies experiencing permanent change, however, require one more type of mechanism:
mechanisms taking into account and orienting social change. Among such mechanisms, we
may find discourses about possible futures of the society at stake.
The relevance of such discourses gave rise to intense debate at a critical moment in the
development of modern societies: the period following the First World War. The war had
proved to be a time of destructive confrontation of politically influential ideas – ideologies –,
calling for a new discussion of the role of ideologies. 15 One important input in that debate was
Karl Mannheim’s book Ideologie und Utopie. In that book, Mannheim, specialized in the
sociology of knowledge (Wissenssoziologie), wanted to show that in the societies of his time
ideologies do not only distort reality (ideologies in the narrow, “relative”, sense of the term)
but also “relate decisions to an always moving reality” (Mannheim [1929] 1952: 85), and in
this second sense, ideologies may also be qualified as utopias (ibidem). Among ideas likely to
be qualified as utopias, he identified one that he names the “liberal humanitarian idea”
(Mannheim [1929] 1952: 191), and which he opposed in particular to the conservative idea
(199) and to the socialist-communist utopia (207).
The concept of utopia defended by Mannheim 16 is worth being reused in the present
discussion about legislation, and in particular legislation about rights. Such legislation not only
identifies a society and organises and legitimizes structures aiming at the control of that society.
It also may define possible objectives for that society. This is in particular the case for
legislation defining agency rights, which is also legislation stimulating individual action.
Historically, the concepts discussed by Mannheim were indeed applied to the law. Soon
after the publication of Ideologie und Utopie, Hans Kelsen discussed in the first edition of his
Reine Rechtslehre “the ideological meaning of the antinomy between individual and society”. 17
After having pointed out the “ideological function” of a concept of subjective rights derived
from a “legal subjectivity” which enjoys “liberty in the sense of self-government and
autonomy” (Kelsen 1934: 42 f.) he stated that “the individual who allegedly stands in a
unsolvable conflict in relation to the society is nothing else than an ideology in the struggle of
certain interests against their limitation be a collective order” (Kelsen 1934: 59). So the concern
of developing a theory of law sharply differentiated from political thought – acute at that
historical moment – led Kelsen to recognize “primary character” to obligations and only
“secondary character” to rights (Kelsen 1934: 51). This reasoning of Kelsen explains why his
work is not easy to relate to a discussion of legislation about rights. However, it is based on the

and cultural hybridization did challenge the reality of national societies, but nevertheless they correspond
to a space of shared historical experience, as it could be observed, for example, in Spain and Portugal
during the recent period of austerity (Calvo García 2014; Guibentif 2016). World society is a rather
inconsistent reality, but it has some existence, at least as the collectivity concerned by the activity on
international organizations.
15
A collection of papers documenting excellently this debate is Meja and Stehr (1982). About the World
War as forcing a new analysis of political ideas, Szende (1922: 186), most explicitely: “Man erlebte
einen Massentod von Schlagworten.”
16
It is to be noticed that the concept of utopia suffered a significant evolution in more recent times.
Certainly in close connection with the evolution of the socialist regimes, the meaning of the term has
evolved, being used in later years to name a social world which has been isolated from history, and from
which conflicts are absent (Dahrendorf 1958).
17
This section disappears in the 1960 edition. Some fragments of it are to be found in Kelsen ([1960]
1984: 61). As far as I could check, the quoted sentences of the 1934 edition were not maintained.
P. Guibentif 273

assumption of a relationship between arguments about rights and strategies of power which
might still be worth to be taken into account nowadays.
We now are in condition to come back to the distorting function of ideology. This function
could be considered as a special case of a more general function of ideologies in modern
societies: to give a counterfactual image of society. Counterfactual not necessarily with the aim
of distorting our perception of reality, but with the aim of enabling us to design social practices
alternative to the current state of affairs. This is, actually, the kind of “distortion” Van Klink
identifies in the case of the “Law as Communication” legislation theory.
Here a distinction has to be introduced. Modern societies are “utopian” societies in the sense
that they avail themselves with the capacity of designing different possible futures, being one
of the tools for this designing of futures the political sphere and, related to that sphere, the
legislation. In that sphere debates take place about possible routes to a society with less poverty,
or to a more competitive society, or to an ecologically more sustainable society, or about
possible ways of combining these different objectives. 18 But we may find in modern societies
also that other “utopia”, which is here at the core of our discussion: the project of a society of
free individuals, cooperating in the development of the society to which they belong, within
the framework of democratic institutions, and among those institutions, with the help of
legislation. So there are, strictly speaking, two levels of utopian thought: at a first level, the
utopia of a society of freely cooperating individuals is the “little helper” of legislation19 and
democratic institutions, and it enables, at a second level, legislation and politics, in turn, to
participate in the production of other “utopias”.
The question now is to reconstruct how “utopias”, or in more neutral terms, discourses likely
to inspire and orient social change are produced. To understand that production, we have to
remember which requirements these discourses have to meet: they must be likely both to
circulate among many people, to be effectively communicated; and to operate in individual
processes of thought, in order to effectively motivate individual action. Historically, the
production of this kind of discourse has been strongly favoured by specialization, which means:
by functional differentiation of discourses, notably within what could be named the cultural
sphere, a process which took place approximatively between the Renaissance and the Reform.
Differentiation of discourses by specialization enables people to intensify the communication
about their experiences of thought and action – among other mechanisms by facilitating the
management of redundancies 20 –, and so to learn to practice a communication with strong
involvement of individual intellectual processes. And differentiation of cultural discourses –
notably art, science, and law – favours reflexivity of thought and communication, by making
comparison between discourses possible. 21

18
One could argue that we witness a process of international institutionalization of such utopias, with
the definition, by the General Assembly of the United Nations, of the Sustainable Development Goals
(United Nations 2015).
19
Picking up the valuable intuition of Van Klink (in this volume), that institutions need their “little
helpers” in the form of theories providing thought and action of people involved in their functioning
with useful references of orientation.
20
Concept applied by Oliver-Lalana (2011: 325) to the communication between jurists, who proposes
its extension to the communication between the legal system and the citizenry.
21
This process has been studied by Niklas Luhmann, in particular in the volumes Gesellschaftsstruktur
und Semantik (Luhmann 1980, 1981, 1989, 1995), as well as by Jürgen Habermas ([1981] 1987) and
Pierre Bourdieu (1997).
13 Taking Modern Legislation Seriously 274

In a certain sense, modern democracies can be seen as being the result of a process of
generalization of the experience of individual autonomy and productivity earlier developed in
the domains of cultural specialization. As a first step, the outcomes of specialized activities
were in an increasing measure mobilized by the emergent state powers. Later on, they started
to be disseminated in an emerging public sphere. The bourgeois revolutions at the end of the
18th century initiated a long and hesitant process of substitution, as users of specialized
activities, of central state powers by the citizenry in general, 22 a substitution which required
measures to provide citizens with the means to act as citizens. In a deeply ambivalent way, the
states – becoming welfare states – developed as a set of mechanisms at the same time
strengthening their control over the citizens, raising the level of productivity of the labour force,
but also empowering the citizenry. 23 The development of the mechanisms providing the
services necessary for these aims required the involvement of professionals, which autonomy
can be considered as a necessary condition for the education or treatment of people supposed
to be educated or treated with a view to the exercise of their citizens’ liberties.
As a result of this historical process, and as we already could see in the previous sub-section,
specialists and non-specialists both are holders of agency rights, and there is a narrow link
between the agency rights of specialists and those of non-specialized citizens. Using their
freedom of producing new scientific knowledge, creative artistic work, alternative
interpretation of social norms, specialists provide non-specialists with the means of knowledge,
capacity of expression, and normative categories which open them spaces for agency.

13.2.3 Agency Rights and Non-Legal Norms

Agency rights are recognized both to specialists and to non-specialists. In the case of
specialized professionals, their rights and freedoms are recognized, precisely, in consideration
of their professional status. Implicitly, they are recognized under the condition that the
autonomous activity will be carried out according to certain professional standards. These
professional standards, actually, take part in the “complex set of social processes” (de Munck
2017: 8) that generates “social freedom”. A scientist exercises her / his scientist’s autonomy
under the condition of the competent application of scientific canons, and it is under that
condition that new insights or new interpretations of what has been observed will be received
as a constructive innovation by her / his colleagues, and, thus, by a broader audience. Among
the mechanisms likely to favour at the same time the emergence and the communication of
new thoughts between specialists of a certain domain, one is worth a special mention: theories,
which develop over the last century, under this precise designation, in many differentiated
domains of activities, and which are a source of in some cases rather precise normative
statements. 24
Two evolutions are to be observed in this domain. In a certain way, what happens is that the
more effective the freedoms at stake are becoming, the more sophisticated the mechanisms to

22
For an interpretation of this process in terms departing from the traditional interpretation emphasising
democratizing pressures emanating from the people itself, Thornhill (2018).
23
Explicit aim, in the case of France, of the setting up of the Institut as the centre of the educational
system to be developed (Gusdorf 1978: 305 f.).
24
About “Reflexionstheorien” of differentiated social systems, see Teubner (1996: 264) and Teubner
(2014); based on these works, about the role of theories in modern societies: Guibentif (2015).
P. Guibentif 275

control their exercise. Some of these mechanisms are internal to the professional domains at
stake; others are external.
On the one hand, professional standards are currently experiencing a process of codification,
a process which corresponds to the hypothesis of the establishment of a “fragmented
constitution” of world society (Teubner 2012). This is what can be observed, for instance, in
the economic domain with the setting up of mechanisms promoting the corporate social
responsibility, but also in the scientific domain, with the publication of ethics charters 25 and
the setting up of ethics committees. Such documents may include the mention of the rights of
professionals, relating them to corresponding professional duties. Differently from legal rights,
however, the rights recognized by such documents cannot be enforced by courts, and they have
to be interpreted as recognized by the relevant professional milieu, not committing the
community, represented by the state, as a whole.
A second evolution is the development of organizational mechanisms aiming at monitoring
the results of professional activities (for a critical discussion of these developments, see Supiot
2015). Such mechanisms are being set up within the state, as mechanisms of the evaluation of
public policies. They also develop in the economic domain, notably within the framework of
the implementation of ISO-standards. These mechanisms also give rise to abundant normative
documents. Differently from legal documents and from ethical charters, these documents do
not address a broad audience, and they are not necessarily communicated to the addressees of
the control mechanisms created, but they address specifically experts in the implementation of
such mechanisms, both on the side of entities in charge with the accreditation procedures, and
on the side of firms and other entities applying for the accreditation.
The foregoing discussion addresses activities taking place in differentiated domains of
specialization. Agency rights may also concern less specialized activities. They always require,
however, favourable social contexts likely to generate shared projects which will shape the
activities actualizing certain agency rights. Recent social science research focuses in particular
on the potential of cities and regional settings (among others: Kebir et al. 2017). Territorial
differentiation seems to play here a role which would deserve to be compared with the role of
functional differentiation in the promotion of individual agency. And one important research
question, in the context of this paper on the legislation about agency rights is to know how, at
regional or urban level, legal provisions co-exists with non-legal normativities in the
production of the “ideological” mix favouring individual agency.
One question raised in particular by Amartya Sen is of special interest here: he argues that
human rights do not need to acquire legal form, and should be recognized as ethical
requirements (Sen [2004] 2008: 144). In favour of an alternative position, one could defend the
following argument. The activities developed in the societal contexts here reviewed –
institutions dedicated to functionally differentiated activities, cities – may require rather
sophisticated arrangements, which will condition in a considerable measure individual
activities. Under the pressure generated by these arrangements, the perception of liberties likely
to be exercised may be eroded. The fact that certain liberties are legally recognized could have
the symbolic effect of strengthening their – to some extent counterfactual – perception of a
liberty, an agency right worth being defended. As it appeared in Portugal in the face of the
austerity policies applied under the programme of financial assistance, the discourse about legal
rights strongly helped collective reactions, in particular from the part of professionals
experiencing limitations in the exercise of their liberties (Guibentif 2016).

25
Two examples: the 2005 EU Charter for Researchers and the 2010 Singapore Statement on Research
Integrity.
13 Taking Modern Legislation Seriously 276

13.2.4 The Role of Jurists in the Exercise of Agency Rights

Jurists play a probably less important role in the application of rules recognizing rights,
compared with their role in the application of rules stating obligations and prohibitions. Rules
recognizing agency rights often are applied in the exercise of a professional practice, which
takes place in a professional context where jurists in principle are not necessarily involved.
Experts in quality issues and project management are nowadays more frequently to be met in
such contexts than jurists. In any event, in such context, jurists meet other professionals, who
are in more favourable condition than ordinary citizens to negotiate the ways jurists may help
them in their actions (Belley 2002: 157 f.).
If the addressees of legal liberties meet restrictions in the exercise of such liberties, they
may adopt many possible strategies apart from judicial steps. They may avoid certain actions,
or more radically, abandon the activity which was supposed to benefit from the liberty now
challenged by the restrictions experienced.
Jurists are likely to be involved if organizations representing the addressees of the legal
liberties at stake – in particular professional organizations or trade unions – take political or
judicial steps in order to defend these liberties.
In such circumstances, however, the role of the jurists can be, not only to know what
procedural measures can be taken and according to what formalities. It is also to participate in
the interpretation of the legal text that formulates that liberty and in the defence of that
interpretation. Her / his more specific role could be here to relate the legal texts applicable in
the first place to other relevant legal texts, in particular, in the domain of rights and liberties,
international instruments. And to relate the liberty in question with other legal principles: duties
of the same addressees corresponding to that liberty, or rights of other persons, which
implementation depends on the effective exercise of the liberty at stake: rights of the
consumers, in the case of economic freedoms, or right to education or to health in the case of
the autonomy of professionals in the domains of education or health care.
Whatever their role in this job of interpretation, an important relationship here is the
following: between the liberty which defence is at stake, on the one hand, and, on the other
hand, the liberty of the jurists themselves, in their professional activity. As François Ost puts
it (Ost 2016: 132, 200), the main characteristic of the law is the fact that it creates, by the work
of the jurists, a sphere where social reality can be thought of, hypothetically, in terms
alternative to the current factual state of affairs. This, at the same time, commits and enables
the jurists to exercise a very specific type of liberty, the liberty of interpretation. So the effective
exercise of the jurist’s task, which requires imagination and capacity to establish distance to
the current social reality, is likely to strengthen the perception other professionals, or citizens
in the exercise of their fundamental rights, have of their liberties. 26
Jurists still might have one more important role, in situations where non-specialized citizens
have to deal with specialists: making use of relevant legislation, to protect the non-specialists
against intrusive measures from the part of specialists. Such a role is notoriously being played
by jurists in the relations between physicians and their patients. However, the concrete

26
One example is supplied by Meßerschmidt (in this volume), who argues that legisprudence has to be
imaginative considering the need of the “containment of lobbyism”. In the oral presentation of the paper
he called for the “creativity of jurists” in this domain.
P. Guibentif 277

intervention of jurists in such contexts may be conditioned by the fact that the relationship
between jurists and non-jurists is itself object of discussion. 27
This brings us back to the broader issue of the relationship between specialists and non-
specialists, in the context of late modernity. Over the last decades, the level of legal knowledge
of non-specialists has improved, with the development of education systems and with the
public access to countless specialized sources through the internet. This does not make
specialists superfluous, but obliges them to rethink their role and their relationship to non-
specialists. In the case of the jurists, this discussion is particularly urgent in the domain of
agency rights.
What is at stake is to assess the real usefulness nowadays of specialized knowledge and how
such a knowledge should be developed and made available to – partly well informed – non-
specialists. Social theory scholarship suggests that specialization is a device of knowledge
production which should not be abandoned, but that it requires a new legitimacy, based on the
recognition of the fact that the gap between specialists and non-specialists has narrowed and
that, in an increasing measure, knowledge will become a co-production associating specialists
of differentiated knowledge disciplines and specialists of all kind of activities carried out on
the ground. Open science policies, for example, tackle precisely these questions, but they are,
for the moment, designed mainly in the political sphere. There is an urgent need for research
and policy debates within the fields of specialized activities.

13.2.5 Legisprudential Implications

In quantitative terms, legal norms stating agency rights only make a limited proportion of the
legislation produced. But these norms are located at crucial places in the legislation: important
chapters in constitutions are devoted to them and norms of statutes which frame certain fields
of private activity or certain public policies. 28 Moreover, a significant proportion of statute law
is related to these norms, aiming at supporting – by appropriate training, by provision of
material means – controlling or limiting the exercise of these agency rights.
Under these circumstances, and taking into account the foregoing discussion,
legisprudential scholarship could be developed at the following five levels:
(1) Formulation of the legal texts:
(i) Formulation in the narrow sense of the term: Legal discourse about rights is supposed to
be assimilated by the holders of these rights themselves. 29 As a consequence, particular
attention has to be devoted to their formulation. In this work of formulation, several alternatives
are to be dealt with. One may use the terminologies of rights or of liberties. When referring to
liberties, the law can attribute them to persons or to activities (see, in the EU Charter, the
examples of the media, arts and scientific research). Rights and liberties may be directly
referred to, or they may be implicitly recognized by the abolition of a prohibition, or by

27
In the French-speaking area, this is one main point in the debate between Commaille (2015) and Ost
(2016).
28
One example: article 64 of the Portuguese Estatuto da Carreira Docente Universitária, Decree-Law
Nr. 205/2009 of 31 August 2009 about the liberty of scientific orientation and opinion of University
lecturers. See https://dre.pt/web/guest/pesquisa/-/search/488485/details/maximized (accessed February
2018).
29
On this point, see for instance Braibant (2001: 35)
13 Taking Modern Legislation Seriously 278

introducing a prohibition addressing activities likely to condition the exercise of somebody’s

rights or liberties (Webber et al. 2018: 20).
(ii) Internal organization of the legal texts: precisely with a view to ensure the accessibility
of the texts stating the principles, it can make sense to separate, on the one hand, the formulation
of the principles, and on the other hand, the procedural rules aiming at implementing these
principles. This has been done in the EU Charter of Fundamental Rights, which devotes its
Title VII to the “General Provisions Governing the Interpretation and Application of the
Charter”.
(iii) Location in the legal discourse: to take rights seriously on a legislative level, one has
to locate them in a meaningful way in the legal discourse, in particular by establishing explicit
links between the different regulations that participate in the implementation of certain rights.
Such links may be formulated in the legal text itself; they may be the result of the location of
the text in the general system of the legislation, if there is such a system; they may be mentioned
in preambles as well as in their footnotes. In terms of substance, four different types of links
should be considered: with texts participating in the formulation of the same right (for example:
a specific infra-constitutional regulation has to refer to relevant constitutional provisions, as
well as to international instruments); with texts giving powers and liberties to persons expected
to contribute to the empowerment of the holders of the rights actually legislated (for example:
academic freedom as relating to the rights to engage in work or to conduct a business); with
texts formulating rights of other persons, which would have to be balanced with the rights
principally at stake (for instance: rights of the consumers to be balanced with the economic
liberties of the goods and services providers); 30 and with texts designing public policies likely
to interfere with the exercise of the rights and liberties at stake (health policies to be balanced
with the principle of the free disposition of one’s own body, or with the principle of free
exercise of medical professions).
In addition, it has to be noted that the discussion of agency rights often take place within
the framework of politically sensitive procedures, where there can be strong tensions between
the parties involved. This generates additional difficulties in the handling of formulation issues.
(2) Embeddedment in non-legal normativities: In the particular case of professional
liberties, their legal recognition, or the reforms of their legal regime, should take place with
due involvement of bodies representing these professions, and, as far as possible, specialists of
the ethics of the profession at stake. Moreover, legislative procedures in such domains should
be conducted having in consideration the fact that their outcome may have an impact on debates
that are currently going on in the field of professional ethics. In the drafting of legal texts in
such settings, special attention has to be devoted to possible specific functions of the law, such
as: to ensure the appropriate perception of a certain liberty; to establish a connection between
a certain activity and, beyond a community of professionals, broader social interests; to
recognize the subjectivity of the person whose activity is supposed to be encouraged.
Beyond special professional norms, attention also has to be paid to other, more generalized,
social norms. An interesting example of linking law with its normative environment in the legal
text itself is the legislative format adopted for the EU Charter of Fundamental Rights. In the
Charter articles formulating rights are introduced by titles referring to what the Convention in
charge with its drafting considered as generally accepted values (Braibant 2001: 39).
(3) Due consideration of the role of specialized jurists: A first question here is that jurists,
in principle, are not the main readers of the texts. As already mentioned, texts about rights and
liberties have to address the owners of the rights and liberties. They may, however, also contain

30
About the role of legislation in the articulation between rights, see Webber et al. (2018: 22, 55 ff.).
P. Guibentif 279

more technical points of interest for jurists in the first place. Here again, the EU Charter may
be cited as an example, with a final section about “General Provisions”, supposed to be read
mainly by legal professionals, while the previous sections are aimed at all citizens. This
corresponds to the idea of the “layered structure of legislative texts” (Xanthaki 2018; Chap. 2
in the present volume).
Beyond the recognition of this difference, another question is the necessary cooperation, in
this domain, between jurists and non-jurists. At the periphery of legislative policy taken in its
broad sense, there should be a concern for the way jurists may, in the future, contribute to the
reception of a given legislation by lay citizens. In the case of legislation stating rights and
liberties, attention should be paid to the fact that, in such domains, jurists do not only advise
non-jurists in procedures of legal enforcement, they also should play a role, together with other
specialists of the regulation of a certain domain of activity, in a constructive interpretation of
the liberties at stake, in order to improve the mobilizing potential of the law.
Legisprudence could here play two rather different roles: on the one hand to participate in
the design of procedures involving specialized jurists, apart from other experts, in the
preparation as well as in the implementation and evaluation of the legislation, and, on the other
hand, as far as possible on basis of its expertise – to be developed – in the issue of the direct
relationship between the law and non-specialists, to help these specialized jurists in the
development of new ways of working with non-specialists, an issue of particular relevance in
a domain – agency rights – where, by definition, the agency of the citizens is at stake.
(4) Appropriate upgrade of the research and evaluation instruments: in the three domains
discussed up to now – formulation and its possible impact; relationship between law and other
normativities; role of specialized jurists – there is still a strong need for solid empirical
evidence. We need to know more precisely how citizens build their notion of rights and
liberties; what is the place of the law in that notion; what kind of relationship exists between
this notion and the perception of other normativities; what is the impact of that notion on their
capacity of action and on their actual activities; how they perceive the role of specialized jurists
in the domain of rights and liberties; what is the impact of the notion they have of this role;
what is their actual experience of cooperating with jurists, among other specialists likely to
support them in the carrying out of their activities. And all these questions should be treated
both in the domain of their specific professional activity, and in their non-specialized citizens’
life, in particular their involvement in the life of the region or of the city in which they live. So
the development of research in this field is urgent and requires a broad interdisciplinary
cooperation, joining in particular legisprudence, researchers from the law and society domain,
as well as psychologists.
(5) Participation in the political debate about rights: specialists in the drafting of legal texts
about rights are likely to bring in valuable inputs in current debates about rights. In this domain,
they should pay attention to a particular topic, the defence of the recognition of an autonomous
right to participate in the actualization of the other fundamental rights. Arguably, such a right
is a necessary complement to all fundamental rights. As rights, they have to be guaranteed by
the collectivity which recognizes them. This guarantee requires concrete measures, and these
concrete measures require concrete action, which means, action from the part of the members
of the collectivity. Both the right to a certain right (access to a right) and the right to participate
in the activities necessary for guaranteeing that right form the framework in which politics –
the organization of collective activities composed by the activities of autonomous individuals
– unfold. Better than the right to access rights, necessary for the identification of certain social
problems, the – individual – right to participate in its actualization – by a necessarily to a
significant extent collective action – could contribute to bring about the perception of a “we”
13 Taking Modern Legislation Seriously 280

as identified by a common activity joining autonomous individuals, a perception that could

reduce the demand for experiences of “we” as opposed to “the others”. 31
Committed to the gathering of knowledge with concrete basis about the possible and
necessary composition of rights in the design of policies of rights, specialists in legisprudence
find themselves in rather favourable conditions to participate in the political debate about this
specific right. Actually, they are implicitly claiming precisely this right at the moment they
invest their scholarly liberty in the development of expertise likely to contribute to the
improvement of legislation guaranteeing agency rights. To contribute to the formal recognition
of this right is just a matter of coherence.
This brings us back to the topic of the today contested issue of the relationship between
specialists and non-specialists. By defending the right of every citizen to participate in the
actualization of the rights of others, specialists in Legisprudence might be paving the way to a
more intense participation, in legislative processes concerning a certain public policy, of all
those who, on the ground, participate in the public action at stake.

13.3 Conclusion

The legislative domain addressing agency rights is worth particular attention, given its
relevance for the quality of democracy. Indeed, not only the regular functioning of democratic
institutions, but also the economic and cultural performances of a democratically organized
togetherness depend on the way people exercise their rights and liberties. And they depend
also, even if not only, on the way these rights are legally formulated. Research on the role of
legislation in these matters, and legisprudential expertise based on such research, are
particularly worth being developed at a time when the governance model of liberal democracies
finds itself under increased competitive pressure from the part of other governance models.
Here a more specific political point could be added: now that non-legal ways of monitoring
individual activities are becoming more efficient and more intrusive, and intensively used by
companies and other large organizations, even where a democratic governance model prevails,
it might make sense to handle with particular care legislative measures confirming individual
rights and liberties. Such measures could contribute to counteract the erosion of citizens’
capabilities that may be caused by mechanisms focusing more on the performance of functions
than on the activity of people.
A theory of modern human individuality as outlined in the present essay, apart from
suggesting more specific guidelines, could help a development of the discipline of
legisprudence favourable to advances on these two lines. It is certainly a utopian theory but –
this has to be reminded – it is only a partial utopia, aiming at helping a legislation which could
design many possible futures.

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31
About the construction of perceptions of “we” in legislation, see Waldron (1999: 158); for a tentative
typology of “we” experiences, see Guibentif (2017).
P. Guibentif 281

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Index

A Constitutional formalism, 184

Accessibility of legislation, 33, 37, 97, 159, Constitutional review. See Judicial review
242, 276 Constitutionalism, 129, 130, 131, 136, 137,
Addressees of legislation, 50, 76, 103, 264, 182, 191, 217
274 Cooperative lawmaking, 210, 213
Agency rights, 261, 262, 266, 267, 268, 269, Criminal legislation, 43
270, 272, 273, 274, 275, 276, 277, 278
Culture of justification, 84, 109, 111, 129, 182,
Arbitrariness (ban on), 54, 61, 63, 157, 218 204, 223
Argument from authority, 56, 168, 253 Curricula of law schools, 233, 234, 239
Aristotle, 2, 7, 8, 11, 26, 153, 169, 237
Authority of law, vii, 68, 69, 74, 75, 76, 77, D
78, 79, 82, 84, 85
Deliberative democracy, 49, 182
Autonomous balancing, 112, 116
Drafting conventions, 25, 26, 27
Axiological rationality, 48, 49, 51, 52, 55, 61,
62, 132, 136, 150
E
Econs vs. Humans, 91, 92
B
Effectiveness of legislation, vi, vii, 14, 19, 20,
Behavioural sciences, 89, 90, 100, 102
21, 24, 27, 28, 29, 30, 31, 34, 39, 40, 41,
Bentham (Jeremy), ix, 10, 134, 169, 237, 244, 49, 50, 52, 62, 136, 146, 241, 245, 246
287
Efficiency, 19, 28, 48, 50, 51, 52, 62, 97, 98,
Better regulation, 39, 222, 240 102, 132, 140, 146, 166, 193, 218, 222, 245
Electronic statute book, 34
C Equality principle, 80, 218
Choice architecture, 91, 99, 102, 103 Ethic of responsibility, 139
Codification, 1, 9, 134, 273 Ethical rationality. See Axiological rationality
Collective goods, 102, 139, 186, 211 European Court of Human Rights, 176, 177,
Communicative approach to legislation, vii, 178, 179, 184, 186, 189, 190, 191, 192,
68, 69, 78, 84 193, 194, 196, 200, 201
Comparative legisprudence, 231, 240 Evaluation of legislation, 21, 47, 59, 250, 277
Constitutional control. See Judicial review Expert groups, 46, 52
Index 286

Expert knowledge, 58, 168 Legal science, v, 134, 135, 136

Legislative balancing, vii, 111, 112, 116, 118,
F 119, 124, 125, 167, 178
Fallacies, 56, 153, 161, 164, 168, 169, 209 Legislative capture, 178, 203, 205, 216, 220,
222
Formal principles, 186
Legislative debate. See Parliamentary debate
Fuller (Lon L.), 5, 12, 14, 69, 76, 86
Legislative deliberation, vii, viii, 60, 167, 173,
Functions of legislation, 82, 261
174, 175, 178, 179, 181, 185, 186, 187,
Fundamental rights, 51, 59, 83, 123, 125, 140, 189, 190, 196, 197, 198
181, 217, 264, 267, 274
Legislative method, 175, 178, 193, 257
Legislative process (phases), 44, 141, 146
G
Legislative quality. see Quality of legislation
General interest, viii, 133, 151, 176, See also
Legislative rationality, 43, 48, 51, 111, 146
Public interest
Legislative reasoning, 138, 167, 194
General practical discourse, 116, 170
Legislative studies, 30, 34, 135, 240, 250
Generality of laws, vii, viii, 1, 8, 13, 14, 217
Legitimacy, vi, vii, 14, 24, 44, 80, 84, 85, 86,
124, 125, 126, 129, 131, 132, 135, 136,
H 137, 173, 174, 179, 181, 183, 184, 185,
Hart (Herbert L.A.), 7, 69, 75, 134 186, 194, 198, 222, 250, 251, 254, 255,
Human dignity, 83, 146, 211 258, 275
Libertarian paternalism, 101, 103
I Lobbying. See Lobbyism
Ideology, 49, 69, 80, 207, 271 Lobbyism, viii, 133, 138, 203, 204, 205, 207,
208, 209, 210, 211, 212, 213, 214, 215,
Interactive approach to legislation. See
216, 217, 222, 223, 274
Communicative approach to legislation
Interest groups, 176, 177, 205, 206, 207, 213,
214, 216, 221 M
Internal morality of law, 12, 76, 79 Majority rule, 49, 56, 57, 137
Margin of appreciation, 177, 189, 190, 192
J
Judge-centred legal culture, v, 134, 249, 251 N
Judicial review, vii, viii, 1, 4, 8, 13, 59, 60, 90, Nomothesia, 1, 12, 13
130, 131, 173, 174, 177, 178, 179, 180, Nudging, 89, 91, 96, 101, 105
181, 186, 187, 190, 191, 192, 193, 195, Nudging degrees, 95
197, 198, 216, 218, 220, 245, 247

P
K
Pareto-optimality, 113, 114, 115
Kelsen (Hans), 73, 270
Parliamentary debate, 46, 60, 133, 153, 168,
170, 175, 177, 178, 179, 181, 187, 189,
L 191, 192, 194, 197
Latent effects, 156 Phronetic legislative drafting, vii, 19, 27, 28,
Law’s crisis, 135 40, 73
Layered approach to legislative texts, 34 Plain language, 23, 31, 32, 33, 34, 38, 96
Legal argumentation (theory of), 147, 167, 169 Political process, 182, 205, 206, 210, 214, 216,
221, 263
Legal education, 232, 233, 234, 239
Pragmatic rationality, 49, 51, 146, 149
Legal positivism, 68, 69, 73, 129, 134, 136
Preambles, 23, 60, 276
Legal principles, 111, 112, 116, 129, 130, 253,
274 Procedural proportionality, 178
Index 287

Proportionality principle, 55, 61, 129, 130, Social engineering, 136, 140
131, 132, 133, 138, 139, 140, 141 Special interest legislation, 204, 207, 208, 212,
Public interest (public good), 53, 102, 205, 214, 215, 217, 218, 221
206, 208, 210, 211, 212, 218, 221, 222, 223 Sunset clauses, 21, 29, 38
Public opinion, 45, 52, 57, 58, 149, 153, 154, Symbolic legislation, 69, 71, 135
156, 167, 185
Systematicity of laws, 13, 132, 135, 136, 167
Public sphere, 91, 194, 272
Publication of laws, 12, 14, 242
T
Teleological rationality, 48, 49, 50, 51, 52,
Q 132, 150
Quality of legislation, vii, 19, 20, 25, 26, 27, Transparency, 58, 94, 133, 185, 187, 199, 204,
28, 30, 40, 135 211, 215, 221
Transparency Register (EU register of
R lobbyists), 220
Regulatory impact assessment, 211
Rhetoric, 5, 153, 169 U
Rule of Law, 14, 30, 33, 35, 83, 131, 156, 218, Users of legislation, 32, 33, 34, 35, 275
254 Utilitarianism, 48, 117, 118, 120, 123, 124,
Rules of procedure, 217 140

S W
Science of legislation, 4, 14, 134, 231, 237 Will of the people, 58, 60
Smart regulation, 89, 96, 248
About the Authors

Manuel Atienza, Dr. iur. Dr. h.c. mult., holds a chair for legal philosophy at the University of Alicante.
He is director of the Alicante Masters Programme in Legal Argumentation (MAJA) and editor-in-chief
of the journal Doxa. His books include Contribución a una teoría de la legislación (A contribution to
the theory of legislation, 1997), Las razones del derecho (Law’s reasons, 1997), Las piezas del derecho
(1996, with J. Ruiz Manero; published in English as A theory of legal sentences, 1998), El sentido del
derecho (The sense of the law, 2001), El derecho como argumentación (Law as argumentation, 2006),
Curso de argumentación jurídica (Legal argumentation course, 2013) and Filosofía del derecho y
transformación social (Legal philosophy and social change, 2017).
Ittai Bar-Siman-Tov, Dr. iur., LL.M. (Columbia) is professor at the Bar-Ilan University’s School of
Law (Israel) and founding co-chair of the Israeli Association of Legislation. He has been an associate-
in-law and a Fullbright scholar at Columbia Law School, and has also served as a senior law clerk at the
Supreme Court of Israel. His scholarship has been published in leading American law journals, such as
Georgetown L.J., Boston University L. Rev., and William and Mary L. Rev. He has edited a special issue
on “Mending the Legislative Process” for The Theory and Practice of Legislation (2015), and his recent
work on temporary legislation has been awarded the G. Majone Prize (European Consortium for Political
Research’s Standing Group on Regulatory Governance) and the Gorney Prize (Israeli Association of
Public Law).
José Luis Díez-Ripollés, Dr. iur., Dr. h.c. mult, holds the chair for criminal law at the University of
Malaga and has been director of the Andalusian Institute of Criminology at the University of Málaga for
27 years, until 2017. He is current Vice-president of the International Penal and Penitentiary Foundation,
as well as President of the Criminal Law-Making Policy Working Group of the European Society of
Criminology. His publications include, among many others, La racionalidad de las leyes penales.
Práctica y teoría (The rationality of criminal law making. Practice and Theory, 2003/2013), La política
legislativa penal en Occidente (ed.) (The Criminal Law-Making Policy in the Western World: a
Comparative Perspective, 2005), La política legislativa penal iberoamericana en el cambio de siglo
(ed.) (The Iberamerican Criminal Law-Making Policy at the Beginning of the New Century, 2008), “El
control constitucional de las leyes penales” (“Constitutional Control of Criminal Law Making”, in
Revista de Derecho Constitucional, 2005), or Política criminal y derecho penal (Criminal policy and
penal law, 2013).
Francesco Ferraro, Dr. iur., is research fellow at the C. Beccaria Department of Jurisprudence of the
University of Milan. He has been visiting professor at the University of Girona. His publications include
L’utilità dei diritti. Diritti morali e giuridici in una prospettiva etica utilitarista (The utility of rights.
Moral and legal rights in the light of utilitarian ethics, 2013), Il giudice utilitarista. Flessibilità e tutela
delle aspettative nel pensiero giuridico di Jeremy Bentham (The utilitarian judge. Flexibility and
protection of expectations in J. Bentham’s legal thought, 2011), and “The Social Dimension of
Fundamental Rights in Times of Crisis” (in Social Rights in Europe in an Age of Austerity, 2018).
About the Authors 290

Pierre Guibentif, Dr. iur, Dr. soc., is professor at the ISCTE – Lisbon University Institute. He has been
a member of the Centre d’Etudes de Technique et d’Evaluation Législatives of the University of Genève
and academic director of the International Institute for the Sociology of Law (Oñati). His publications
include Feitura das leis (The making of laws, 2014, with M.T. de Almeida and J. Caupers), Foucault,
Luhmann, Habermas, Bourdieu. Une génération repense le droit (2010), and Novos territórios do
direito. europeização, globalização e transformação da regulação jurídica (Law’s new territories.
Europeanization, globalization and transformation of legal regulation, 2008, coedited with M.E.
Gonçalves).
Bart van Klink, Dr., is professor of legal methodology at the Faculty of Law, Vrije Universiteit
Amsterdam (VU), and responsible for skills training and methodological courses in the legal curriculum.
He is board member of the Dutch Law and Society Association (VSR) and co-editor-in-chief of the
international journal Law & Method. He has published several articles and books on symbolic legislation
theory among which his dissertation De wet als symbool (Law as Symbol, 1998); the volume Social and
Symbolic Effects of Legislation under the Rule of Law (2005, coedited with N. Zeegers and W.
Witteveen); and the volume Symbolic Legislation Theory and Developments in Biolaw (2016, coedited
with B. van Beers and L. Poort).
Gema Marcilla, Dr. iur., is professor of legal philosophy at the University of Castilla-La Mancha
(Albacete). Her publications include Racionalidad legislativa. Crisis de la ley y nueva ciencia de la
legislación (Legislative rationality. Crisis of legality and new science of legislation, 2005), “Balancing
as a guide to legislative reasoning” (in Legisprudence, 2010), “Justificación de las decisiones
legislativas” (“Justification of legislative decisions”, 2014), and “Argumentación legislativa y teoría
estándar de la argumentación jurídica” (“Legislative argumentation and standard legal argumentation
theory”, 2014).
Klaus Meßerschmidt, Dr. iur., is professor at the University of Erlangen-Nürnberg, and adjunct
professor of public law at Humboldt University of Berlin. He has recently edited the contributed volume
Rational Lawmaking under Review. Legisprudence according to the German Federal Constitutional
Court (2016, with A.D. Oliver-Lalana), and has authored a treatise on legislative discretion
(Gesetzgebungsermessen, 2000), as well as a large number of publications on legisprudence,
constitutional and European law, including a textbook on European environmental law (Europäisches
Umweltrecht, 2011).
A. Daniel Oliver-Lalana, Dr. iur., LL.M. (Genova), is currently a Ramón y Cajal Fellow at the
University of Zaragoza’s Law Faculty. His publications include Legitimidad a través de la comunicación
(2011), Derecho y cultura de protección de datos (2012, with J.F. Muñoz), The Rationality and
Justification of Legislation (2013, co-edited with L. Wintgens), and Rational Lawmaking under Review
(2016, co-edited with K. Meßerschmidt).
Jan Sieckmann, Dr. iur., is professor of public law and legal philosophy at the University of Erlangen-
Nürnberg. He has been professor of public law at the University of Bamberg (1998–2008) and DAAD-
visiting professor at the University of Buenos Aires (2007–2012). His publications include
Rechtsphilosophie und Grundrechtstheorie (Legal Philosophy and Basic Rights Theory, 2017, co-edited
with M. Borowski and S. Paulson), The Logic of Autonomy (2012), Recht als normatives System (Law
as a Normative System, 2009).
Wim J.M. Voermans, Dr. iur., is professor of constitutional and administrative law and director of the
Institute of Public Law at the University of Leiden, and former president of the International Association
of Legislation (IAL-AIL). His publications include, among many others, Unierecht in de Nederlandse
rechtsorde (Union’s law in the Dutch legal order, 2012, with F.H. van der Burg), Legislative Processes
in Transition. Comparative Study of the Legislative Processes in Finland, Slovenia and the United
Kingdom as a Source of Inspiration for Enhancing the Efficiency of the Dutch Legislative Process (2012,
with H. ten Napel et al.); or Constitutional Law of the EU Member States (2014, with L. Besselink et
al.).
 About the Authors 291

Helen Xanthaki, Dr. iur., is professor of law at University College London (UCL), director of
International Postgraduate Laws Programme at the University of London, Senior Research Fellow at the
Sir William Dale Centre for Legislative Studies, and current president of the International Association
of Legislation (IAL-AIL). Her publications include, among many others, Legislation in Europe: A
Handbook for Scholars and Practitioners (2017, coedited with U. Karpen), Drafting Legislation: Art
and Technology of Rules for Regulation (2014), and Thornton’s Legislative Drafting (2013, 5th ed.). She
has also edited the volume Enhancing Legislative Drafting in the Commonwealth: A Wealth of
Innovation (2014).
Virgilio Zapatero Gómez, Dr. iur. Dr. h.c. mult. is emeritous professor at the University of Alcalá de
Henares, where he has previously held the chair of legal philosophy. He is author of El arte de legislar
(The art of legislating, 2009) and El derecho como proceso normativo (Law as a normative process,
2010), as well as editor of the Spanish translation of Bentham’s Nomography (2004). He has been an
MP at the Spanish Congress (1979-1993), Secretary of State (1982-1986), Ministry of the Spanish
Government (1986-1993), and representative at the Parliamentary Assembly of the Council of Europe
(1993).
Silvia Zorzetto, Dr. iur., is associated professor of philosophy of law at the Cesare Beccaria Department
of Jurisprudence of the University of Milan and is habilitated as full professor. Her publications include
La norma speciale (The special norm, 2010), Repetita iuvant? Sulle ridondanze linguistiche nel diritto
(On linguistic redundancy in law, 2016), La ragionevolezza dei privati (The Reasonableness of
Individuals, 2008) and the edited books La consuetudine giuridica (The legal custom, 2008), Diritto e
linguaggio (Law and Language, 2015, with P. Perri), and La motivazione delle leggi (The justification
of laws, forthcoming).

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