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Intellectual Reluctance

(a) Sunset clauses and the reluctance towards ‘termination’

In Part I, Jefferson’s words ‘the earth belongs to the living’ were quoted not only to explain the relevance of sunset clauses but also to evidence that the need to terminate laws periodically is far from being a recent concern. Nonetheless, it is this exact fear that the earth only belongs to the living, and that termination of life is projected onto the extinction of laws, that may explain the legislators’ reluctance to enact sunset clauses.[1] By adopting these clauses, lawmakers might have the psychological perception that they are not leaving a legislative ‘legacy’ in the legal order that goes beyond their terms of office. Jefferson’s concern may seem less relevant in a time where legislation is highly policy-driven. Still, the life of most statutes and regulations remains considerable, revealing indirectly the mentioned reluctance towards termination. In the Netherlands, for example, the average duration of a statute is 40 years, while a regulation has a ‘life expectancy’ of 21 years.[2]

In addition, there is a widespread perception that the durability of laws reflects their social, political and economic importance: the longer laws last, the more influential they are, or seem to be.[3] This disinclination towards the enactment of temporary policy or legislative instruments is shared by both legislators and policy-makers. It is easier to adopt new laws and policies than to extinguish the existing ones. A possible explanation for this concerns the prejudice against policy termination: terminating a policy often implies acknowledging a policy failure.[4] However, this concern is ill-founded since, first, the effectiveness of laws decreases with time, especially when they are not regularly applied.[5] Secondly, obsolete laws do not produce a significant influence in society and are often regarded as a dead letter. Thirdly, a revision or termination of laws to fit the evolution of society and technology is susceptible to increasing the quality and effectiveness of legislation (see Chapter 2).

Termination is necessary to avoid the degradation of laws that no longer serve a useful purpose or lag behind technology and society. ‘Termination is the ultimate adjustment of people, policies, programs, systems, and institutions that have ceased to work well. Death, divorce ... [and] the repeal of legislation ... can be seen as examples of termination [but] the sense of finality that coincides with termination gives way to a spirit of rebirth and creation’.[6] Therefore, termination of laws and policies should not be dominated by the fear of admitting failure or extinction. It is instead an opportunity to incorporate novelties and improve the quality of law and policy-making. As mentioned in Chapter 2, the ability to sunset obsolete laws and policies and ensure that the law does not lag behind can have a positive influence on investment policies.[7] To wit, the relevant circumstances and the political or social context in which the termination occur are more important than the legislative instrument chosen. In brief, the unconscious need to hold on to the duration of laws as a synonym of their importance is therefore unjustified.

Sunset clauses are not the only legislative instruments affected by a ‘psychological’ or intellectual scepticism, which is often difficult to support by substantial evidence. Experimental legislation is often regarded with comparable scepticism due to its terminological and partial methodological resemblance to scientific experiments.

  • [1] Jorg Steinhaus, Gesetze mit Verfallsdatum (Books on Demand, 2008) 44.
  • [2] P.O. de Jong and M. Herweijer, Alle regels tellen - de ontwikkeling vanhet aantal wetten, AMvB’s en ministeriёle regelingen in Nederland (WODC/Boom, 2004) 45-6.
  • [3] Forrest Maltzman and Charles R. Shipan, ‘Change, Continuity, and theEvolution of the Law’ (2008) 52(2) American Journal of Political Science 252.
  • [4] See Peter DeLeon, ‘Public Policy Termination: An End and a Beginning’(1978) 4 Policy Analysis 369.
  • [5] See Anthony D’Amato, ‘Legal Uncertainty’ (1983) 71(1) California LawReview 1.
  • [6] Mark R. Daniels, Terminating Public Programs: An American PoliticalParadox (M.E. Sharpe, 1997) 31.
  • [7] Ibid. 36.
 
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