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Experimental Legislation: A ‘Friend’ to Legal Certainty

Although it has never been claimed in the literature that experimental legislation should be regarded as a companion to legal certainty, there appear to be numerous arguments in favour of the view that there is at least no general incompatibility between them. First, experimental regulations will not violate the principle of legal certainty as long the Bestimmtheitsgebot (imperative of determinacy) and legality dimensions are respected; and the contents, objective and scope of regulatory experiments are as precisely and extensively defined as possible.[1] The Bestimmtheitsgebot demands that citizens are aware of the goal to be achieved with experiments and the direction that these experiments will take.[2] Should these requirements be fulfilled, then the principle of legal certainty will not be endangered, even when undetermined concepts are employed. According to the German Constitutional Court, the use of these legal concepts may be necessary to facilitate ‘flexible legislative reactions to changing social circumstances and to possible evasion tendencies’.[3] The adoption of experimental dispositions in Germany to enable the ‘advancement of the local self-government’ (‘Weiterentwick- lung der kommunalen Selbstverwaltung’) or the implementation of the ‘new public management’ (‘Neues Steuerungsmodell’) are illustrations of the use of undetermined concepts.[4]

Secondly, the enactment of experimental legislation can also be justified by the imperative to keep up with ‘technical advancements and improvements in the modes of communication so that the benefits of new inventions and developments may be made available ’ to the public.[5] This was acknowledged by the US Court of Appeals (District of Columbia) in

1970, which held that considering ‘the congressional desire that [administrative agencies] encourage technological innovation’ and the relevance of the implementation of experimental regulation for ‘informational input that makes such an innovation possible’, the court would only strike down an experiment in the presence of ‘a compelling showing of legislative prohibition’.[6]

Thirdly, the enactment of experimental laws or regulations containing novel dispositions or new approaches to new social problems can prevent the abrupt introduction of changes in the legal order, hence safeguarding legal certainty. It could be argued that transitory law is originally meant to ensure these legislative transitions. However, experimental legislation can be useful in contexts of uncertainty, when legislators need to gather further information as to the most effective regulation of a new social problem or a technological novelty. Experimental regulations go beyond transitory law, guaranteeing, on the one hand, a subtle transition between ‘old’ and ‘new’ rules; and on the other, shaping the content and implementation of the latter, filling the verified knowledge gaps.

In the German literature, experimental laws have been described as ‘preliminary’ legislative acts that are meant to generate knowledge and experience and by this means reduce the uncertainty connected with the effects of new legal rules.[7] By experimenting and consequently evaluating these new rules, the legislator prepares the legal order for the incorporation of change and creates a solid ground for the enactment of permanent rules.[6] In this context, experimental legislation can be qualified as an evidence-based lawmaking instrument since it submits new legislation to a reality test and assists the generation of new infor- mation.[9]

In the 2001 Dangerous Dogs judgment, the German Constitutional Court adopted a favourable position towards the incorporation of evidence in the lawmaking process,[10] arguing that it was the task of the legislator to support theoretical assumptions on available facts. Since there appeared to be scientific evidence that the dangerousness of dogs did not solely depend on genetic characteristics but also on other elements, legislators should ensure that legislation would be revised in accordance with the acquisition of new information on this subject.

The importance of considering new information and scientific knowledge in lawmaking is particularly important in the regulation of new products and services. The German Constitutional Court acknowledged that in this case experimental legislation could be a particularly valuable instrument to gather information. In a case regarding the regulation of geriatric care, the Karlsruhe court affirmed:

The experimental clause employed in the law (s. 4 para 6 AltPflG) is necessary because it creates space for temporary testing of integrated and generalist training models with new content and career-related specializations. The results of these pilot projects will be systematically monitored and evaluated in order to come closer to the long-term goal of a single professional field of ‘care’.[11]

The introduction of an experimental clause was essential in this context to test integrated forms of education and training in the relatively new field of geriatric care. The German Constitutional Court here regarded experimentation as an uncontroversial form of testing novelties and improving the long-term objective of the law: guaranteeing uniformity in the provision of geriatric care.

Fourthly, a static concept of legal certainty makes little sense in the twenty-first century. In the last decades, the concept of legal certainty has evolved and so has the awareness that in a fast-changing society, laws are unable to keep pace with social and technological developments and foresee all the phenomena to which they potentially apply.[12] Legal dispositions should be adapted to both social reality and the increasing amount of knowledge gathered on a certain topic. Therefore, legal certainty has to be dynamically interpreted so that laws can remain ‘certain’ in the light of the available information and the dynamic phenomena they regulate. This dynamism can be guaranteed through the adaptability of a legal system, since the more innovative and adaptable a legal order is, the easier it will be for it to respond to a changing environment and allow private actors to explore new opportunities in the market.[13] In this context, the principle of legal certainty should not be regarded as ‘an obstacle in reforming norms’, but rather ‘as an instrument that consolidates the liberty of the legislator’,[14] enabling it to adapt laws to the social reality and the judge to interpret them in conformity with the existing precedent.[15]

  • [1] Thomas Freund, Kommunale Standardoffnungs- und Experimentierklau-seln im Lichte der Verfassung (WVB, 2003) 100-101.
  • [2] Ibid. 103.
  • [3] German Constitutional Court, 2 BvL 1/57, 12 November 1958, BVerfGE8,274 (326). See A. Groth, Kommunalrechtliche Experimentierklauseln, Kiel:Lorenz-Von-Stein-Institut fur Verwaltungswissenschaftem an der Christian-Albrechts-Universitat zu Kiel, 2005, Arbeitspapier No. 72, 117.
  • [4] Ibid. 120-24.
  • [5] United Telegraph Workers v. Federal Communications Commission, 141U.S. App. D.C. 190, 436 F. 2d 920.
  • [6] Ibid.
  • [7] Funke, BUrokratieabbau mit Hilfe zeitlich befristeter Gesetze, n. 53 above,48.
  • [8] Ibid.
  • [9] A. Seidman and R.B. Seidman, ‘ILTAM: Drafting Evidence-based Legislation for Democratic Social Change’ (2009) 89 Boston University Law Review435; R.A.J. Van Gestel and G. Van Dijck, ‘Better Regulation through Experimental Legislation’ (2011) 17(3) European Public Law 539; R.A.J. Van Gestel,‘Evidence-based Lawmaking and the Quality of Legislation: Regulatory ImpactAssessments in the European Union and the Netherlands’ in H. Schaffer and J.Iliopoulos-Strangas (eds), State Modernization in Europe (SIPE, Bruylant, 2007)139.
  • [10] German Constitutional Court, 1 BvR 1778/01, 16 april 2004, BVerfGE110, 141, see paras 72-90.
  • [11] Translation of the author. See German Constitutional Court, 2 BvF 1/01,24 October 2002, para. 383. The original text reads: ‘Der in das Gesetzaufgenommene Experimentierklausel (§ 4 Abs. 6 AltPflG) ist erforderlich, weilsie Raum schafft zur befristeten Erprobung von integrierten und generalistischenAusbildungsmodellen mit neuartigen Inhalten und berufsfeldbezogenen Spezial-isierugen. Die Ergebnisse dieser Modellvorhaben sollen systematisch beobachtetund ausgewertet werden, um dem langfristigen Ziel eines einheitlichen Berufs-felds “Pflege” naher zu kommen’.
  • [12] Popelier, ‘Five Paradoxes on Legal Certainty and the Lawmaker’, n. 23above.
  • [13] Katharina Pistor, Yoram Keinan, Jan Kleinheisterkamp and Mark D. West,‘Innovation in Corporate Law’ (2003) 31 Journal of Comparative Economics676.
  • [14] Maria Elena Lauroba Lacasa, ‘The Principle of Juridical Certainty and theDiscontinuity of Law’ (2003) 63 Louisiana Law Review 1243.
  • [15] In this chapter, the principle of juridical certainty and the doctrine of staredecisis (principle of stability and standard of legislative questions) have not beenexamined since the study of the possible constraint exerted by the principle oflegal certainty on the enactment of sunset clauses and experimental legislation isthe main object under analysis, and not the change in interpretation by the judgesof existing norms.
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