Recent trends in legislation and legisprudence in Europe: how can scholarship help to improve regulatory quality?

Abstract

Laws of comprehensible quantity and good quality, precise and transparent statutes are essential elements of rule of law. Legislation in all European countries and the European Union, however, fails to reach these goals. The number of laws, as enacted, and the quantity of the body of law is constantly increasing. Undoubtedly, excessive legislation is a criterion of quality deficits, for laws which one cannot know or understand cannot be effectively implemented. But quality standards fail to be met in many more respects, namely in a formal sense. The law should be as simple as possible and formulated in a plain language, unless the addressees are specialists (eg in technology). The law also should obey a coherent structure; style, wording, the use of references, general clauses etc must be properly used. The reality is that legislation often neglects to follow these rules. This is a standing complaint in all European countries; legislation is neither transparent nor understandable and close to the citizens. Instead, it is often superfluous and irritating.

Legisprudence is scholarship in legislation, and in the form of research, publication of results and teaching in legislation is called upon to improve this deplorable situation. Since the law is the primary and central instrument of government in the democratic and rule-of-law state, legisprudence contributes to “better legislation” as an essential element of better regulation and “better government”.

The following remarks start from some apparent trends in legislation today in a comparative, rather than national, perspective. They will then proceed to look at chances and limits of scholarship in legislation.

This article by Professor Dr Ulrich Karpen sheds light on three trends in legislation, which can be observed in all states of the constitutional type: (1) the quantity of legislative output, (2) the belief in the rationalisation of legislation and its progress, and finally (3) the monitoring of legislation by regulatory impact assessment (RIA), namely by judicial review.