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I Introducing sunset clauses and experimental legislation

Lawmaking in a time of change

‘He’s very sad’, Ursula answered, ‘because he thinks that you’re going to die’. ‘Tell him’, the colonel said smiling, ‘that a person doesn’t die

when he should but when he can’.

Gabriel Garcia Marquez, One Hundred Years of Solitude (1967)


In the ideal world, laws ‘mirror society’: they are based on perfect information, regulate social behaviour in its multiple forms and rapid mutations, and reflect the social, economic and political conditions of their time.[1] These ‘perfect laws' are born of an informed, deliberative and efficient process, in other words, key legislative decisions are only made when sufficient and relevant information has been gathered, ‘a full interchange of views and arguments among those making the decisions' has taken place and ‘legislative proposals [have been] disposed of in the time available'.[2] In addition, in the ideal world, laws are the result of a fair decision-making process impermeable to political hurdles and lobby- ing,[3] lead a life of effective and efficient implementation, and expire when they are no longer necessary. Unfortunately in the real world, laws do not expire when they should, but when they can. Moreover, reflecting the current society has become increasingly challenging due to the rapid ‘social and technological acceleration of society’.[4] This acceleration of reality does not interact well with slow-going legislators, resistance to legal change, obsolete laws, excessive administrative burdens and a perception of the rule of law as ‘a law of [permanent] rules’.

Most jurisdictions have been struggling for the past decades with legislative and regulatory challenges. On the one hand, legislators and regulators are required to be ‘smarter’, enact ‘simpler’ rules, minimize bad laws and regulations, regulate without stifling innovation, and reduce unnecessary costs or burdens on the private sector.[5] However, these challenges are particularly difficult to surmount due to the abundance of unnecessary and obsolete statutes and regulations, their poor quality and contradictory character, and the risk-aversion and scarce information of legislators and regulators. These challenges do not mean that in a time of frequent and complex changes, law should stop aiming to ‘mirror society’. Rather, a greater awareness of the interaction between the evolution of society and the adoption and implementation of laws should be developed.[6] Briefly, in a time of change, dynamic legislative instruments must be sought, not cosmetic mirrors. A quest for such instruments implies, first of all, an understanding of the main informational challenges posed by the modern society and its evolution, and then an introductory analysis of two valuable legislative instruments that can offer an adequate response to these circumstances: experimental legislation and sunset clauses. These legislative instruments will be the leading actors in this book.

  • [1] Charles Montesquieu, The Spirit of Laws (first published 1748, CosimoClassics, 2011); for a modern conception of the ‘mirror theory’, see Brian Z.Tamanaha, A General Jurisprudence of Law and Society (Oxford UniversityPress, 2001).
  • [2] Henry M. Hart, Jr and Albert M. Sacks, The Legal Process: BasicProblems in the Making and Application of Law (Foundation Press, 1994) 695.
  • [3] For an analysis of the ‘real’ rules governing the legislative process, seeIttai Bar-Siman Tov, ‘Lawmakers as Lawbreakers’ (2010) 52 William and MaryLaw Review 805.
  • [4] William E. Scheuerman, Liberal Democracy and the Social Accelerationof Time (Johns Hopkins University Press, 2004).
  • [5] Wendy L. Gramm and Gerald D. Gay, ‘Leading a Regulatory Agency:Lessons from the CFTC’ (1994) 17(4) Regulation 1.
  • [6] Wolfgang Hoffman-Riem, ‘Legislation experimentale en Allemagne’ inCharles Morand (ed.), Evaluation legislative et lois experimentales (PressesUniversitaires d’Aix-Marseille, 1992) 177.
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