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The past and present of sunset clauses and experimental legislation

Oh, do not ask, ‘What is it?’ Let us go and make our visit. T.S. Eliot, The Love-Song ofJ. Alfred Prufrock (1915)

INTRODUCTION

Temporary legislation is a broad term used to refer to different forms of temporary legislation and regulations, such as temporary effects legislation, emergency legislation, sunset clauses and experimental legislation. The terms ‘temporary legislation’ ‘Gesetzgebung aufZeit (in Germany)[1] or ‘tijdelijke wetgeving’ (in the Netherlands) stand for laws and regulations that terminate at the end of a period established beforehand, except if the legislator decides otherwise.[2] As introduced in Chapter 1, temporary laws are not enacted on a systematic basis in Germany, the Netherlands and the United States, but they are no rarity.[3] In these three jurisdictions, temporary laws appear to serve specific purposes.

Temporary legislation is often regarded as an extraordinary tool or even a ‘necessary evil’ for problems that permanent legislation would not be able to solve. To illustrate, a rapid legislative response to calamities or to political instability requires extraordinary but temporary measures (for example, curfew laws) and cannot afford to wait for the end of the bureaucratic legislative process. Temporary laws can, however, be employed for a number of other less common reasons, including the production of information, resolution of uncertainties or search for political consensus. In this chapter, two types of temporary legislation and their functions are ‘demystified’: sunset clauses and experimental legislation. Both legislative instruments are characterized by their temporary character and can be used to perform a number of functions.

This chapter aims to understand where sunset clauses and experimental legislation come from (2.2); what their nature is and how they can be distinguished from apparently similar instruments (2.3); and what functions they perform (2.4). Finally, attention will be devoted to fields or circumstances where sunset clauses and experimental legislation could and should play an important role, in place of permanent legislation (2.4).

  • [1] The German literature employs different terms to refer to temporary laws,other possibilities are ‘Gesetze mit Verfallsdatum’ and ‘Zeitgesetze’.
  • [2] Jacob E. Gersen, ‘Temporary Legislation’ (2007) 74 University of Chicago Law Review 247.
  • [3] For the Netherlands, see P.O. de Jong and M. Herweijer, Alle regels tellen- de ontwikkeling van het aantal wetten, AMvB’s en ministeriele regelingen inNederland (WODC/Boom, 2004) 45-6: the scarcity of sunset clauses andexperimental legislation can be indirectly concluded from the data on the averageduration of laws (40 years) and regulations (21 years). The laws and regulationswith duration of less than five years were a substantial minority. For Germany,see Ingo von Munchen, ‘Die Zeit im Recht’ (2000) I Neue Juristische Wochen-schrift 4. Until the reunification, experimental legislation was enacted mostly inthe former Federal Republic of Germany, see Wolfgang Hoffman-Riem, ‘Legislation experimental en Allemagne’ in Charles Morand (ed.), Evaluation legislative et lois experimentales (Presses Universitaires d’Aix-Marseille, 1992) 179.For the United States, see Gersen, ‘Temporary Legislation’, n. 2 above.
 
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