Home Law Constitutional Sunsets and Experimental Legislation: A Comparative Perspective
STRANGE SILENCES AND GUIDING VOICES
Despite the above-mentioned virtues of sunset clauses and experimental legislation, these legislative instruments do not proliferate in most legal orders. In practice, sunset clauses and experimental laws are almost unknown instruments to legal practitioners and represent a minority of the annual production of legislation in the three jurisdictions under analysis: the United States, the Netherlands and Germany. In the three mentioned jurisdictions, diverse examples of these legislative instruments can be found, but it is clear that sunset clauses and experimental legislation are not systematically used. According to a thorough study conducted by Zachary Gubler, federal agencies in the United States have rarely employed experimental rules in the last decades (c. 1 per cent of total enacted regulations). Up until now, little research has been conducted on the reasons underlying the scarce enactment of sunset clauses and experimental legislation. This strange silence is broken in this book by the following question: in a time of fast and complex changes, why have sunset clauses and experimental legislation been so scarcely used?
The reluctance towards a broader enactment of sunset clauses and experimental legislation can be partially explained, both in different European countries and in the United States, by legal and non-legal reasons. There is first a notorious concern that these instruments may endanger a number of fundamental values and principles of law. Lawyers, legal academics and other actors such as environmental NGOs view experimental dispositions with suspicion, fearing that an experimental approach to legislation may open the door to unpredictable rules, unprincipled legislative compromise and pose a threat to the fundamental precepts of the rule of law. On the one hand, legislators in Europe and in the United States are explicitly or implicitly constrained not only by the rule of law but also by a number of principles that derive from it. Laws are expected to be long-standing, predictable, reasonable and non-discriminatory. However, sunset clauses and experimental laws and regulations expire within a period determined beforehand and one could argue that it is not always possible to predict whether these dispositions will be renewed or terminated after their evaluation.
From a traditional legal perspective, temporary legislation has been conceived as a ‘contradictio in adjecto’: if legislation is normally perceived as a synonym of continuity and a source of stability and predictability, the enactment of temporary rules, outside emergency scenarios, appears to defy a common perception of legislation as a lasting phenomenon. Citizens should be able to understand clearly what laws require and entitle them to do so as to be able to exercise their autonomy and effectively manage their affairs. Achieving this stability has implied ensuring the continuity of laws, restricting the number of amendments to them, which meant that lawmakers often had to act as if they were already aware of all relevant circumstances at the time of the legislative drafting. The preservation of stability has been highly valued over time since, as Fuller explains, legislative inconstancy could be one route to the failure of any legal system. This does not mean that laws cannot be amended. Instead, this scholar’s criticism targets mainly frequent and capricious changes in law. Fuller compares the problems of sudden changes in law to the evils of retrospective law; however, the scholar, citing the US Supreme Court in Ochoa v. Hernandez y Morales, acknowledges the possibility of amending law ‘while the time is still running, and so that a reasonable time still remains for the commencement of an action’. This type of amendment could allow legislators to incorporate new information in a preliminary period so as to adapt new laws not only to changing realities but also to the progressive acquisition of information.
Moreover, experimental regulations will only deserve this designation if a differentiation occurs, that is, not all citizens will be equal before the law since only experimental rules are only applicable to a part of the population. The other questions that should break the vast and strange silences on the present topic are: is the rule of law threatened by a law of ‘sunset and experimental rules’? What are constitutional sunsets and experimental regulations?
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