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(b) True sunset clauses and ‘the others’

Sunset clauses can be ‘reflexive’ or ‘irreflexive’, ‘specific’ or ‘general’, last five years or many more, but they are intrinsically characterized by the unavoidable event of termination. Pathologies are certainly visible in the lawmaking world (see Part III), but sunset clauses distinguish themselves from the crowd of rules by: (i) their inherent temporary character; (ii) compulsory evaluation; and (iii) renewal on extraordinary grounds. Sunset clauses should not be confused with temporary laws enacted in scenarios of catastrophes and other emergencies. Emergency temporary rules depend on the duration of extraordinary circumstances and are only enacted to solve critical situations. Sunset clauses, on the contrary, have a broader scope of application since they are usually not adopted to respond to emergencies, but to tackle other temporary problems or to terminate rules that are not expected to remain effective or to be necessary after a fixed period.

Review clauses may appear similar to sunset clauses since they impose the evaluation of legislative dispositions; however, the former determine the continuation of dispositions, except if the legislator explicitly decides to terminate them,[1] while sunset clauses ‘are born to die’.

‘Sunset laws’ have been described in the literature as the ‘US equivalent’ of European experimental legislation.[2] Nothing could be further away from the truth, for various reasons. First, as mentioned above, the idea of experimenting with law has a long history in the United States and this history is different from the reasons that underlie the emergence of sunset clauses. Secondly, although sunset clauses and experimental legislation share some characteristics such as their temporary character and evaluation clauses, they are distinct instruments. The basic distinction between sunset clauses and experimental legislation is the aspiration to permanence: the former does not have it; the latter is a preliminary step towards it. Notwithstanding the multifunctionality of sunset clauses (see below), sunset clauses are primarily instruments of policy termin- ation,[3] while experimental legislation is the first attempt to introduce a good lasting regulation.

  • [1] Mandelkern Group on Better Regulation, Final Report (13 November 2001) 17, available at http://ec.europa.eu/governance/better_regulation/ documents/mandelkern_report.pdf.
  • [2] Bertil Cottier, ‘Les Sunset Laws: Des lois experimentales a la modeamericaine?’ in Charles-Albert Morand (ed.), Evaluation legislative et loisexperimentales (Presses Universitaires d’Aix-Marseille, 1993) 161.
  • [3] Th. Camps, W.J.M. Kickert and A.F.A. Korsten, ‘Horizonwet, een nieuwecoloradokever’ (1982) 2 Bestuur 10.
 
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