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Legislative Policy and Effectiveness: A (Small) Contribution from Legal Theory

Published online by Cambridge University Press:  28 June 2018

Mauro ZAMBONI
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Abstract

The purpose of this paper is to use legal theory to clarify the nature and the components of effectiveness in legislation, in particular when it comes to choosing legislative policy, ie the legislative model used to tackle a certain issue via legislation. Part II is devoted to revealing the true meaning of the idea of effectiveness, ie as a functional link helping legislative drafters to move among three elements (ideals, situation, results) rather than as an absolute value that drafters should pursue in their work. Part III continues by investigating the problems that such confusion has produced within legislative discourse and practice, in particular by focusing upon two types of effectiveness as external and internal to the legislative process. Finally, Part IV proposes how this idea of effectiveness as a functional element of legislative work (and the consequent distinction between an external and an internal version) can (and should) affect the work of legislative drafters. This idea becomes particularly relevant in relation to the optimal location of the non-legal experts in the legislative process as a means of increasing the effectiveness of legislative policy.

Type
Symposium on Effective Law and Regulation
Information
European Journal of Risk Regulation , Volume 9 , Issue 3: Symposium on Effective Law and Regulation , September 2018 , pp. 416 - 430
Copyright
© Cambridge University Press 

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Footnotes

*

Professor in Legal Theory, Faculty of Law, Stockholm University, Sweden.

References

1 See Xanthaki, H, Drafting Legislation: Art and Technology of Rules for Regulation (Hart Publishing 2014) 6–7 Google Scholar; and Mousmouti, M, “Operationalising Quality of Legislation through the Effectiveness Test” (2013) 6 Legisprudence 191 CrossRefGoogle Scholar, 197–200 (where the problem as to the unclear meaning of the criterion of effectiveness is traced back to the vast array of ideas as to what “quality of legislation” means). See, eg Birnie, P and Boyle, A, International Law & the Environment (2nd edn, Oxford University Press 2002) 9–10 Google Scholar. See also Xanthaki, H, “Quality of Legislation: an Achievable Universal Concept or a Utopian Pursuit?” in L Mader and M Travares Almeida (eds), Quality of Legislation: Principles and Instruments (Nomos 2011) 75–85 Google Scholar (as to the need of having an effective legislation as a unifying desire shared by all legislative scholars and practitioners).

2 See eg Jacobson, HK, “Conceptual, methodological and substantive issues entwined in studying compliance” (1998) 19 Michigan Journal of International Law 569 Google Scholar, 573, where the author, when dealing with effective legislation, is more attentive to its impact on the legal system.

3 See eg Iredell, J, Social Order and the Limits of the Law: a Theoretical Essay (Princeton University Press 1981) 180 Google Scholar; or Mader, L, “Evaluating the Effects: A Contribution to the Quality of Legislation” (2001) 22 Statute Law Review 119 CrossRefGoogle Scholar, 126 (focusing on the legislation and its social consequences).

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5 See Willcox Seidman, A, Seidman, RB, and Abeyesekere, N, Legislative Drafting for Democratic Social Change: A Manual for Drafters (Kluwer Law International 2001) 21 Google Scholar; and Reed Dickerson, F, The Fundamentals of Legal Drafting (Little Brown for the American Bar Association 1965) 8 Google Scholar.

See also Perera, T, “The Wavering Line between Policy Development and Legislative Drafting” (2011) 3 The Loophole – Journal of the Commonwealth Association of Legislative Counsel 65 Google Scholar; and, in general for the central role of legal actors in the political discourse, Weber, M, “Politics as a Vocation” in HH Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology (Oxford University Press 1991) 95 Google Scholar.

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7 See Seidman, Seidman, and Abeyesekere, supra note 5, 25–28. As to the centrality of legal actors in law-making in general and in the policy moment in particular, see eg Cotterrell, R, The Sociology of Law: an Introduction (2nd edn, Butterworths 1992) 203–204 Google Scholar; Luhmann, N, Law as a Social System (Oxford University Press 2004) 79–88 Google Scholar; Friedman, L, The Limits of Law: a Critique and a Proposal (Center for Studies on Changing Norms and Mobility 1986) 27–28 Google Scholar; MacCormick, N, Legal Reasoning and Legal Theory (Clarendon Press 1997) 235–237 Google Scholar; and Cotterrell, R, Law’s Community: Legal Theory in Sociological Perspective (Clarendon Press 1995) 240–248 Google Scholar.

See also Delnoy, P, “The role of legislative drafters in determining the content of norms” (Government of Canada: Department of Justice 1995)Google Scholar<www.justice.gc.ca/eng/rp-pr/csj-sjc/ilp-pji/norm/index.html> accessed 10 May 2018; and the distinction between “efficacy” and “effectiveness” as sketched by Xanthaki, H, “On Transferability of Legislative Solutions: The Functionality Test” in C Stefanou and H Xanthaki (eds), Drafting Legislation: A Modern Approach (Routledge 2016) 4–5 Google Scholar. For Xanthaki, while efficacy is a general quality of legislation (as to the capacity to produce the intended results), effectiveness is a quality specific to the contribution of the legislative drafters to the law-making process.

8 Hart, HLA, “Postscript” in HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 239 Google Scholar. See also MacCormick, N, HLA Hart (Stanford University Press 1981) 37–40 Google Scholar; and Tuori, K, Critical Legal Positivism (Ashgate Publishing 2002) 320 Google Scholar.

9 As to other potential causes of such discrepancy as to the meaning of “effectiveness of legislation”, see Mousmouti, supra, note 1, 192–193.

10 MacCormick, HLA Hart, supra, note 8, 48. See also, for a similar definition but under the label of “ideology,” Cotterrell, supra note 7, 13. See, eg, Xanthaki, supra, note 7, 16–17.

11 See eg Timmermans, CWA, “How to improve the Quality of Community Legislation: the Viewpoint of the European Commission” in Kellermann, AE, Azzi, GC, Jacobs, SH and Deigthon-Smith, R (eds), Improving the Quality of Legislation in Europe (Kluwer Law International 1997) 45–46 Google Scholar; or Karpen, U, “Comparative Law: Perspectives of Legislation” (2012) 6 Legisprudence 149 CrossRefGoogle Scholar, 173–185 (as to effectiveness as to the primary value to measure the “good quality legislation”). See also Dale, W, Legislative Drafting: A New Approach (Butterworths 1977) 340 Google Scholar, where the author points out effectiveness as the goal of legislation (leaving its “functionality” to values such as human rights and rule of law somehow at the horizon).

12 See Voermans, W, “Concern about the quality of EU legislation: what kind of problem, by what kind of standards?” (2009) 2 Erasmus Law Review 59, 66–68 Google Scholar (where effectiveness is a functional tool in order to realise the rule of law); Dale, Legislative Drafting, supra, note 11, 340; and Karpen, U, “Efficacy, Effectiveness, Efficiency: From Judicial to Managerial Rationality” in K Meßerschmidt and DA Oliver-Lalana (eds), Rational Lawmaking under Review: Legisprudence According to the German Federal Constitutional Court (Springer 2016)Google Scholar 304–308 (where effectiveness in legislation is not considered a value per se but one of the criteria functional in order to measure the legitimacy of law as a whole).

13 See eg Xanthaki, H, “Duncan Berry: A Visionary of Training Legislative Drafting” (2011) 1 The Loophole – Journal of the Commonwealth Association of Legislative Counsel 18 Google Scholar; or Mousmouti, M, “Effectiveness as an Aid to Legislative Drafting” (2014) 2 The Loophole – Journal of the Commonwealth Association of Legislative Counsel 15 Google Scholar. See also Flückiger, A, “Effectiveness: a new Constitutional Principle” (2009) 50 Legislação: cadernos de ciência de legislação 183 Google Scholar, 187; and Lembcke, OW, “Symbolic Legislation and Authority” in B Van Klink, B Van Beers and L Poort (eds), Symbolic Legislation Theory and Developments in Biolaw (Springer 2016) 87–104 CrossRefGoogle Scholar (where the effectiveness/ineffectiveness quality of the legislation is used by political actors as a specific goal of the legislative process).

14 See Mader, supra, note 3, 119; and Mousmouti, supra, note 1, 200 (as to effectiveness as the measure of the causal relation between legislation and its effects). See also Reed Dickerson, F, Materials on Legal Drafting (West Publishing Co 1981) 191 Google Scholar. But see eg Moons, N and Hubeau, B, “Conceptual and Practical Concerns for the Effectiveness of the Right to Housing” (2016) 6 Oñati Socio-legal Series 656 Google Scholar, 661–662,

<opo.iisj.net/index.php/osls/article/viewFile/461/904> accessed 10 May 2018 (as to the difficulty in tracing “the” purpose of a certain legislation).

15 See Xanthaki, Drafting Legislation, supra, note 1, 7–8 (as to effectiveness as the measure of quality of legislation). As to this fundamental relational nature of the idea of effectiveness, see also Xanthaki, supra, note 7, 6 (where effectiveness “reflect[s] the relationship between the effects produced by legislation and the purpose of the statute passed”).

16 See Axtelle, GE, “Effectiveness as a Value Concept” (1956) 29 Google Scholar The Journal of Educational Sociology 240, 241 (where effectiveness is described as “the maximization [results] of ends [original idea] with available resources [actual situation]”).

17 See Laws, supra, note 6, 89–90 (“[T]he ultimate objective for a proposal of legislation is always more or less political”, 89); and Drechsler, H, Hilligen, W and Neumann, F (eds), Gesellschaft und Staat: Lexikon der Politik (9th edn, Verlag Franz Vahlen 1995) 632 Google Scholar. See also Zamboni, M, The Policy of Law: A Legal Theoretical Framework (Hart Publishing 2007) 135–137 Google Scholar.

But see Allott, A, “The Effectiveness of Laws” (1981) 15 Valparaiso University Law Review 229, 233Google Scholar (as to the difference, in the addressees’ eyes, between the purpose of the originator of the norm and the purpose of the current emitter).

18 See Laws, supra, note 6, 88 (“Legislation is all about changing things”). See also Flores, IB, “The Quest for Legisprudence: Constitutionalism v. Legalism” in LJ Wintgens (ed.), The Theory and Practice of Legislation: Essays in Legisprudence (Ashgate 2005) 29 Google Scholar (where the author points out the ambiguity of the term legislation, swinging between the process of formation of regulations and these very regulations).

19 See Luhmann, N, “The Coding of the Legal System” (1992) 1991–1992 European Yearbook in the Sociology of Law 145, 145–146 Google Scholar; and Xanthaki, Drafting Legislation, supra, note 1, 351–352 (“Effectiveness must be at the forefront of pre-legislative scrutiny, and this involves evidence-based, empirical research”, 352). See also Cranston, R, “Reform through Legislation: The Dimension of Legislative Technique” (1978–1979) 73 North Western University Law Review 873 Google Scholar, 875; and Zamboni, supra, note 17, 143–148.

20 See Mousmouti, supra, note 13, 17, where the author identifies four components of the criterion of effectiveness, namely purpose, substantive content, the legal context (or “overarching structure”) and the “real-life results”. But see Müller, G and Uhlmann, F, Elemente einer Rechtssetzungslehre (3rd edn, Schulthess 2013) 51–52 Google Scholar (where effectiveness is the measurement of the degree of the legislation’s fulfilment of its intended goals without suffering from unwanted side-effects). It is worth noticing how Müller and Uhlmann’s definition of effectiveness tends to be more of normative character than descriptive, considering that in reality legislation almost always tends to have (to a larger or narrower extent) unwanted results.

21 In this respect, this article shares a basic assumption of the Positive Political Theory when it comes to the law-making and the law in general, namely the idea that all relevant actors within the legislative discourse (eg political parties, when it comes to its making, or judges, when it concerns its interpretation) tend rationally to mold the legislative product as close as possible to their own preferred outcome (which can space from being reelected to accomplish a good public policy). See Farber, DA and Frickey, PP, “Foreword: Positive Political Theory in the Nineties” (1992) 80 Georgetown Law Journal 457 Google Scholar, 463–471; and Farber, DA and Frickey, P, Law and Public Choice: A Critical Introduction (University of Chicago Press 1991) 21 CrossRefGoogle Scholar. See also Young, O and Levy, MA, “The effectiveness of international environmental regimes” in Young, O (ed.), The Effectiveness of International Environmental Regimes: Causal Connections and Behaviour Mechanisms (The MIT Press 1999) 3–5 Google Scholar (coupling effectiveness to the kind of rationality shared by the evaluating actors and therefore distinguishing between, for instance, a political approach, a legal approach, and an economic approach).

22 See eg Bähr, H, The Politics of Means and Ends: Policy Instruments in the European Union (Ashgate 2010) 115 Google Scholar. See also A Seidman and RB Seidman, “Between policy and implementation: legislative drafting for development” in Stefanou and Xanthaki, supra, note 7, 295.

23 See MacCormick, N, Institutions of Law: An Essay in Legal Theory (Oxford University Press 2007) 179 CrossRefGoogle Scholar. See eg Petersen, CJ, “Racial Equality and the Law: Creating an Effective Statute and Enforcement Model for Hong Kong” (2004) 34 Hong Kong Law Journal 459 Google Scholar. See also Weber, M, Economy and Society (Guenther Roth and Claus Wittich eds, University of California Press 1978) 657 Google Scholar; Tuori, supra, note 8, 36–39; Xanthaki, supra, note 7, 6 (where the author hints at such a distinction by defining efficacy as to the capacity of the legislation to realise its policy content, or as here defined the political actors’ goal, while effectiveness “relates to the effect of the statute”, ie the legal actors’ goals); and MacCormick, N, “On Legal Decisions and their Consequences: from Dewey to Dworkin” (1983) 58 New York University Law Review 239 Google Scholar, 247 (where, though confined to the decision-making process, the author sketches a distinction between “consequences” and “juridical consequences” of a legal action).

24 See Xanthaki, Drafting Legislation, supra, note 1, 7 (“For the purposes of drafting… effectiveness is the ultimate measure of quality in legislation. It simply reflects the extent to which the legislation manages to introduce adequate mechanisms capable of producing the desired regulatory results”). See eg Birungi Kamugundu, O, “Prioritising legislation in the policy process” in H Xanthaki (ed.), Enhancing Legislative Drafting in the Commonwealth: A Wealth of Innovation (Routledge 2015) 90–92 Google Scholar.

25 See eg Lombardi, D and Moschella, M, “The symbolic politics of delegation: macroprudential policy and independent regulatory authorities” (2017) 22 New Political Economy 92 CrossRefGoogle Scholar, 97–101 and Walker, GA, International Banking Regulation: Law, Policy and Practice (Kluwer Law International 2001) 489–502 Google Scholar (as to the meaning of the term “results” when it comes to legislative reforms’ results for the political and financial actors respectively).

26 See eg The World Bank and International Monetary Fund, Financial Sector Assessment: A Handbook (World Bank Publications 2005)Google Scholar ch 9 (as to the legal actors’ perspective as to having an effective regulatory legislation of the financial markets).

27 See Laws, supra, note 6, 90 (“an effect [of legislation] in the real world is not the inevitable result of the conversion of policy into law”). See also Voermans, supra, note 12, 66–67 as to the distinction between legislative quality (dealing with the legislation’s outputs) and regulatory quality (more focused upon the outcomes of a legislation). As to the identification of the criterion of effectiveness with reaching (or not) certain legal policy outcomes, see eg Mader, L, “Evaluation of Legislation: A Contribution to the Quality of Legislation”, in Evaluation of Legislation: Proceedings of the Council of Europe’s Legal Co-operation and Assistance Activities (2000–2001) (Council of Europe Publishing 2001) 24 Google Scholar.

28 See Castles, FG, Comparative Public Policy. Patterns of Post-war Transformation (Edward Elgar 1998) 248–292 Google Scholar. See also Zamboni, supra, note 17, 139–142. See eg Thompson, JA, “Outputs and Outcomes of State Workmen’s Compensation Laws” (1981) 43 Journal of Politics 1129 CrossRefGoogle Scholar, 1132.

29 This different kind of effect can be considered a consequence of the more general distinction between normative and social function of the law. See Raz, J, “On the Functions of Law” in BAW Simpson (ed.), Oxford Essays in Jurisprudence (Second Series) (Clarendon Press 1980) 280 Google Scholar. See also Laws, S, “Giving Effect to Policy in Legislation: How to Avoid Missing the Point” (2011) 32 Statute Law Review 1 CrossRefGoogle Scholar, 3–4 (as to the different types of legislative outcomes); Delnoy, P, The Role of Legislative Drafters in Determining the Content of Norms (The Internal Cooperation Group – Department of Justice of Canada 2005) 3 Google Scholar, where effectiveness is the quality of the norms to produce an (intended or unintended) effect (outcome), while efficient are the norms that produce the desired effect (or intended outcome); and Mousmouti, supra, note 13, 17, distinguishing between prospective dimension of effectiveness (ie intended outcomes) and real-life dimension of an effective legislation (actual outcomes).

30 See Xanthaki, Drafting Legislation, supra note 1, 6 (“A wonderful draft may be capable of producing the desired regulatory effects [outputs], but bad implementation and bad judicial application may interfere with its actual results [outcomes]”). See eg Banakar, R, Merging Law and Sociology: Beyond the Dichotomies in Socio-Legal Research (Galda + Wilch Verlag 2003) 277–285 Google Scholar (as to the former Swedish legislation against gender discrimination, which had produced an high number of changes in the regulatory regime, ie legal policy outputs, but, due to several circumstances, a low impact upon the economic and social spheres, ie few legal policy outcomes).

31 See Bulygin, E, “Valid Law and Law in Force” in E Bulygin, Essays in Legal Philosophy (Oxford University Press 2015) 284–292 CrossRefGoogle Scholar; and Pattaro, E, A Treatise of Legal Philosophy and General Jurisprudence: Volume 1: The Law and The Right (Springer 2005) 156–157 Google Scholar. See eg Olivecrona, K, Law as Fact (2nd edn, Stevens & Sons 1971) 222–223 Google Scholar; and Ross, A, On Law and Justice (Stevens & Sons 1958) 81 Google Scholar. But see Hart, HLA, “Self-referring Laws” in HLA Hart, Essays in Jurisprudence and Philosophy (Clarendon Press 1983) 175–178 CrossRefGoogle Scholar.

32 See Lang, W, “A Concept of the Validity of Law” (1996–1997) XXIX-XXX Archivum Iuridicum Cracoviense 87 Google Scholar, 88.

33 See Scharffs, BG, “Law as Craft” (2001) 45 Vanderbilt Law Review 2245 Google Scholar, 2339; Piris, J-C, “The Legal Orders of the European Union and of the Member States: Peculiarities and Influences in Drafting” (2004) 1–2 European Journal of Law Reform 1 Google Scholar, 1; and Bowman, G, “The Art of Legislative Drafting” (2005) 7 European Journal of Law Reform 1 Google Scholar, 3. See also Symonds, A, The Mechanics of Law-Making (Edward Churton 1835) iv Google Scholar. But see Xanthaki, Drafting Legislation, supra, note 1, 10–16 (where the author points out how, in the modern age of technological progress, drafting can be considered neither a science nor an art).

34 MacCormick, HLA Hart, supra, note 8, 126. See also Xanthaki, Drafting Legislation, supra, note 1, 15 (where the author points out how legislative drafting “is a liberal discipline where theoretical principles guide the drafter to conscious decisions made in a series of subjective empirical and concrete choices… [which are] context dependent… [and] will always depend on normative judgements”).

35 See eg Markman, SC, “Training of Legislative Counsel: learning to draft without Nellie” in A Zammit Borda (ed.), Legislative Drafting (Routledge 2011) 17–19 Google Scholar (where among the knowledge required by the legislative drafters are only accounted legal knowledge and knowledge as to the political system, but no requirement is needed as to the socio-economic environment upon which the legislation is going to operate); or N Haji Ismail, “Legislative drafters: lawyers or not?” in Xanthaki (ed.), Enhancing Legislative Drafting in the Commonwealth, supra, note 24, 71–72 and Xanthaki, Drafting Legislation, supra, note 1, 359–360 (both authors limiting the duty of the legislative drafters to a, though extended, legal knowledge).

36 See Laws, supra, note 6, 94 (“the legislative process does always involve an element of diluting the political content of the inputs to produce a legal output”). See also Seidman, A and Seidman, RB, “ILTAM: Drafting Evidence Based Legislation for Democratic Social Change” (2009) 89 Boston University Law Review 435 Google Scholar, 444–448 (as to the central role played by the legislative drafters not only as “scrivener” but also as a “designer” of the legislation); and E Gowers, Plain Words: Their ABC (Alfred A Knopf 1954) 18. It is worth noticing that in this work within ‘legislative drafters’ are included both the proper drafters and the substantive law experts, who are usually involved in the drafting process, as pointed out by Xanthaki, Drafting Legislation, supra, note 1, 24. Höfler, Compare S, Nussbaumer, M and Xanthaki, H, “Legislative Drafting” in U Karpen and H Xanthaki (eds), Legislation in Europe: A Comprehensive Guide for Scholars and Practitioners (Hart Publishing 2017) 153–156 Google Scholar.

37 See Eder, K, “Öffentlichkeit und Demokratie” in M Jachtenfuchs and B Kohler-Koch (eds), Europäische Integration (Springer 2004) 105–106 Google Scholar. See eg Trubek, LG, Nance, M and Hervey, TK, “The Construction of Healthier Europe: Lessons from the Fight against Cancer” (2008) 26 Wisconsin International Law Journal 804 Google Scholar, 814; or JJ Kilborn, Expert Recommendations and the Evolution of European Best Practices for the Treatment of Overindebtedness, 1984–2010 (2010) <ssrn.com/abstract=1663108> accessed 10 May 2018.

38 See eg Zeegers, N, “Distinguishing True from other Hybrids. A Case Study of the Merits and Pitfalls of Devolved Regulation in the UK” (2009) 3 Legisprudence 299 CrossRefGoogle Scholar; or Black, AE, From Inspiration to Legislation: How an Idea Becomes a Bill (Pearson Prentice Hall 2006) 123 Google Scholar. But see Bimber, B, The Politics of Expertise in Congress: The Rise and Fall of the Office of Technology Assessment (State University of New York Press 1996) 60–68 Google Scholar, as to potential different goals between non-legal experts somehow internal to the legislative process (eg as part of another Ministry) and those non-legal experts which are institutionally external to the law-making (eg representing certain interests groups).

39 MacCormick, Institutions of Law, supra, note 23, 179. See also Blaustein, AP and Porte, CO, The American Lawyer: A Summary of the Survey of the Legal Profession (The University of Chicago Press 1954) 99–100 Google Scholar; and Hage, J, “Legislation and Expertise on Goals” (2009) 3 Legisprudence 351 CrossRefGoogle Scholar, 352. See eg Kosta, V, Fundamental Rights in EU Internal Market Legislation (Hart Publishing 2015) 281 Google Scholar (where, in terms of tobacco control, the experts’ concerns as to public health had no impact upon legislation due to their conflicting with intellectual property rights viewed as fundamental rights).

40 This problem of legislative drafters operating outside their field of expertise becomes particularly striking in many cases of law-reform projects in developing and transitional countries. See, eg, Otto, JM, Conflicts between citizen and state in Indonesia: the development of administrative jurisdiction. Working Paper no 1, (Van Vollenhoven Institute for Law, Governance and Development in Non-Western Countries 1992)Google Scholar. See also Hage, supra, note 39, 352 (where the author points out how legislative goals, ie one of the pillar of effectiveness, do not belong to the Is-world, but to the Ought-world: “[t]he quality of legislation depends in part on the goals pursued by means of the legislation. There can be no expertise on goals because they are not an object of knowledge, but rather of adoption”). But see Seidman and Seidman, supra, note 36, 457–461.

41 See Müller and Uhlman, supra, note 20, 299–300. See also H Schulze-Fielitz, “Paths Towards Better Legislation, Detours and Dead-Ends” in Meßerschmidt and Oliver-Lalana, supra, note 12, 46–47; and Xanthaki, H, Thornton’s Legislative Drafting (5th edn, Bloomsbury Professional 2013) 145 Google Scholar, as to the five stages of the legislative process (dealing specifically with the creation of new statutory provisions) which should be the monopoly of the drafters.

42 See Friedman, LM, “Law and Its Language” (1964) 33 George Washington Law Review 563 Google Scholar, 566–567 (“The uniqueness and the toughness of legal language enhance the claim of lawyers to be members of a ‘profession’”, at 567); and Crabbe, V, Legislative Drafting. Vol 1 (Routledge-Cavendish 1993) 22–23 Google Scholar. See also Habermas, J, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (The MIT Press 1998) 255 Google Scholar (as to the necessary transformative role of the law-making); and Teubner, G, “How the Law Thinks: toward a Constructivist Epistemology of Law” (1989) 23 Law and Society Review 727 CrossRefGoogle Scholar, 745. See eg D Cook’s striking statement that “the reality is we are not writing for The Sun; we are drafting legislation. Legislation is there to change the law and any extraneous material that does not change the law is likely to cause confusion in the courts and litigation and unnecessary expense”, as reported in House of Commons, Political and Constitutional Reform Committee, Ensuring standards in the quality of legislation – First Report of Session 2013–14 (2013) under ev. 13, <publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/85/85.pdf> accessed 10 May 2018.

43 See Cotterrell, Law’s Community, supra, note 7, 12 and 299. See also Summers, R, “Law as a Type of ‘Machine’ Technology” in R Summers, Essays in Legal Theory (Kluwer Academic Publishers 2000) 49 CrossRefGoogle Scholar; Raz, J, “The Inner Logic of the Law” in J Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press 1994) 236–237 Google Scholar; Luhmann, N, A Sociological Theory of Law (Routledge & Kegan Paul 1985) 159–160 Google Scholar; and Tamanaha, B, A General Jurisprudence of Law and Society (Oxford University Press 2001) 71–76 CrossRefGoogle Scholar.

44 In legislative drafting, this phenomenon is particularly evident in the so-called “principles based legislation” (or goal-legislation), where “law-making is increasingly outsourced to non-legal experts and its concepts are often derived from non-legal discourse”. See Westerman, PC, “Breaking the Circle: Goal-Legislation and the Need for Empirical Research” (2013) 1 The Theory and Practice of Legislation 395 Google Scholar, 395. See also Black, J, “Forms and Paradoxes of Principles Based Regulation” (2008) LSE Legal Studies Working Paper No 13/2008, 13–17 Google Scholar, <dx.doi.org/10.2139/ssrn.1267722> accessed 10 May 2018 (in this respect, the phenomenon identified in this work could be classified as Black’s “formal principled based regulation”). See eg Pohlmann, P, “Principles-based Insurance Regulation: Lessons to be Learned from a Comparison of the EU and German Law of Risk Management” in J Burling and K Lazarus (eds), Research Handbook on International Insurance Law and Regulation (Edward Elgar 2011) 336–340 Google Scholar.

45 See Laws, supra, note 6, 100. See eg Tröger, T, “How Special Are They? Targeting Systemic Risk by Regulating Shadow Banks” in Lomfeld, B, Somma, A and Zumbansen, P (eds), Reshaping Markets. Economic Governance and Liberal Utopia (Cambridge University Press 2016) 185–207 Google Scholar. See also USAID Handbook on Legislative Strengthening (Center for Democracy and Governance – US Agency for International Development 2010) 7, <pdf.usaid.gov/pdf_docs/Pdact310.pdf> accessed 10 May 2018 (“Most legislatures have ample lawmaking authority in theory… For this to be done effectively, legislators and their constituents need to track proposals at various stages of the legislative process, and to be given an opportunity to influence them before final adoption”).

46 See Laws, supra, note 29, 9–16. See also Habermas, supra, note 42, 452 and 487; and Waldron, J, The Dignity of Legislation (Cambridge University Press 1999) 156 CrossRefGoogle Scholar.