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INSTRUCTIONS FOR USE OF SUNSET CLAUSES AND EXPERIMENTAL LEGISLATION

Permanent Legislation: General Guidelines

As the term conveys, permanent rules should be designed to regulate lasting phenomena. Change is inevitable; however, while in a number of cases legislation only needs to be updated after several decades, in others five years may result in an outdated status for some rules in relation to new technological developments. In the first scenario, legislators can rightly prefer permanent to temporary rules. Permanent legislation is in principle the most appropriate legislative approach to the regulation of social problems or situations that are not characterized by rapid changes and about which sufficient information has been gathered. The legislator does not foresee in this case rapid changes that can justify the use of temporary instruments. Unexpected social changes must be safeguarded against, but based on centuries of legal experience, legislators can already anticipate that some social phenomena are characterized by a slow evolution.

Permanent legislation can equally be preferred when the legislator is required to establish core legal institutions, principles and material concepts. These must have a lasting nature in order to guarantee the stability of the legal order. Nonetheless, an important line should be drawn between the material content of these principles and concepts and their practical implementation: while the first can resist the change of times and is sufficiently open to respond to them, the second should benefit from new technological and social developments. To wit, it is inconceivable that the legislator would set a date on the due process clause. However, bearing in mind the increasing workload faced by judges, the legislator may experiment with new forms of proceedings which ensure that trials take place within a reasonable period of time (European Convention on Human Rights (ECHR), Article 6). Therefore, institutions and concepts that resist the ravages of time should be granted a quasi-permanent character; however, this does not preclude the legislator from combining this permanence with a temporary or experimental search for better means of implementation.

In brief, permanent legislation should be employed to regulate: (a) core legal institutions, concretization of legal principles and fundamental concepts of a legal order; (b) realities that do not tend to evolve rapidly; and (c) phenomena that are not new and about which sufficient information and experience has been gathered.

 
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