Research project A middle-range theory of legislation in a globalizing world
Research project that leading to a monograph describing an overall theoretical framework for structuring and evaluating legislative processes and their outcomes. The project, awarded to RJ Sabbatical, is based on several feasibility studies and case studies that have taken place over the last 5 years.
Although legislation is the source of most of modern law, it has not been the subject of deeper reflection from the legal world. In specific, attention has usually been focused on the macro-level in the legislative processes, ie. to discuss philosophical or political grounds and criteria for the "good" legislation, or the "necessity (or not)" of regulating a particular area through legislation. Alternatively, considerations have revolved around the micro-level in the legislative process, ie. the structure, wording and impact of different laws on a particular legal system and/or on society.
Given this situation, the basic focus of the project will be the construction and analysis of the link between political instances (in a very broad sense, ie statements on "how it should be") and legal measures (ie statements on "how it ought to be"). In this between-space legislative policies are formulated, ie. legislative strategies to find the “best way” to implement a particular ideology in the form of legislative measures.
The project is based on several pre-studies and case studies that have led to a number of articles on legislation being produced and published over the past 5 years. Based on these preliminary case studies, the project will primarily result in a monograph that describes a theoretical general framework for structuring and evaluating the legislative processes and their results.
Project description
It is a common truth that legislation, despite being the source of most of modern law, has never been the subject of deeper reflection on the part of the legal world. In particular, one of the central phases of law-making, namely the transformation of political directives into the legal discourse within legislative law-making processes (i.e. the transformation of politics into statutory provisions), has garnered little attention in the legal debate (Zamboni 2007, 61-87). In recent decades, legislative studies have come up against another significant barrier that is becoming a central topic for legal scholarship and practices: the globalization of the law. The circulation of legal models around the world, applied as valid law (regardless of whether these are formally inserted in the various legal systems), has given birth to three interconnected institutional phenomena which have kept law-making (in particular in its legislative forms) distant from the focus of legal scholarship.
First of all, the globalization of law has widened the gap between the process of creation of laws and their concrete implementation by the legal actors (Twining 2000, Ch. 1; Boyle and Meyer 2002, 66-69; de Sousa Santos 2003, Ch. 9; Walker 2015, 47-48). Nowadays, the legal models valid in a certain legal system are often produced in legislative (and law-making) processes taking place in foreign and distant countries and/or supranational entities. Therefore, and now more than ever, the focus of legal scholarship –also under pressure from surrounding legal practitioners– is on the “validity” (or invalidity) of such foreign legal models in a certain system, and not on their creation in a galaxy far away (de Sousa Santos 2003, Ch. 9; Cragg 2001, 213-220; Teubner 1997, xiv).
Secondly, the globalization of the law has contributed to the fading of the nation state as primary regulator and thus a weakening of the nation state’s major regulatory tool, legislative law-making (Heydebrand 2002, 117-118; Teubner 2004, 72; Michaels 2013, 293). Therefore, it seems almost natural that now, when it comes to law-making, the attention of legal scholarship has been focused primarily on non-legislative law-making, such as soft law-making or the creation of codes of conduct. Finally, due to the progressive specialization of law and (even more importantly) the globalization of law (and the consequent weakening of the traditional dogmas of “democratic” and national parliament-based law-making), there has been a process of increasing the distance between actors operating at the macro-level (e.g. political actors and political thinkers) and actors working at the micro-level (e.g. legislative drafters and legislative studies scholars) (Cotterrell 1995,299; Weber 1978, 895; Xanthaki 2014, Ch. 2 and 210; Summers 2000, 52; Bourdieu 1987 828, 835).
The purpose of this project is to offer a way to establish a link between these two levels (macro/politics and micro/drafters): a middle-range theory of legislation. The goal of this theory will be to offer a structure capable of channeling the messages coming from the political world (e.g. as expressed in national and/or international assemblies) into viable and concrete legislative products (e.g. functioning legislative provisions), with specific (but not exclusive) examples from certain realities of the Western or Western-based legal discourse (e.g. Sweden, United Kingdom, and South Korea).
Project members
Project managers
Mauro Zamboni
Professor
