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Sunset clauses and experimental legislation beyond the law

Es ist nicht genug zu wissen, man muss auch anwenden. Es ist nicht genug zu wollen, man muss auch tun.

[Knowing is not enough, we must apply. Willing is not enough, we must apply.]

Johannes W. Goethe, Wilhelm Meisters Wanderjahre (1795)


Legislators are not only influenced by existing law and legal principles, but also - and often primarily - by the ‘constraints and resources in [these actors’] milieu, including the behavior of implementing agencies’,[1] interest groups and politics. Scholars and practitioners in these areas have analyzed the reasons behind the scarce use of policy phenomena or instruments that often perform comparable functions to sunset clauses and experimental legislation. This is the case of policy termination and policy experimentation. Policy termination has been defined as ‘the cessation of a public entity ... or a policy cycle’.[2] Legislation cannot be understood detached from policy-making: novel policies often give rise to new laws that are regarded as their implementation vehicles, but policy can also be greatly determined by lawmaking.[3] Due to this connection, the odds are that the factual reasons why legislators do not consistently employ sunset clauses or experimental legislation might be similar to the ones behind the reluctance to terminate policies or experiment with them, or take their results into consideration when enacting new policies.

In this chapter, diverse non-legal challenges behind the enactment and implementation of sunset clauses and experimental legislation are examined: first, the intellectual and ideological reluctance to use these legislative instruments; secondly, the lack of information regarding sunset clauses and experimental legislation; thirdly, the role played by politics in the adoption of sunset clauses and experimental legislation. Although these issues have a ‘factual’ nature, they are also legally relevant for a complete understanding of the legislative instruments under analysis.

  • [1] Robert B. Seidman, ‘Justifying Legislation: A Pragmatic, InstitutionalistApproach to the Memorandum of Law, Legislative Theory, and Practical Reason’(1992) 29 Harvard Journal on Legislation 1,5.
  • [2] Michael Howlett and M. Ramesh, Studying Public Policy: Policy Cyclesand Policy Subsystems (Oxford University Press, 1995) 263.
  • [3] Ittai Bar Siman Tov, ‘Lawmakers as Lawbreakers’ (2010) 52 William andMary Law Review 805, 841: Gert-Jan Veerman and Robin Mulder, Wetgeving metBeleid (Boom Juridische uitgevers, 2010) 43; see also Ivor Burton and GavinDrewry, Legislation and Public Policy: Public Bills in the 1970-74 Parliament(Macmillan Press, 1981).
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