Project structure

1. Lack of a central connection between ideas and statutes

By looking at the contemporary interest in legislative processes and especially the areas most affected by the globalization of law (e.g. transnational corporate law or commercial law), one can easily see how legal scholarship appears to lack interest in the fundamental core of legislative processes: the transformation of political, social, economic, and cultural phenomena into concrete, day-to-day legislative measures (Zamboni 2007, 96-100; Frydman 2012, 17.). This deficiency is quite remarkable. In particular, one should instead consider the extensive study of and literature about the initial moment of the law-making process; the macro-formation of political instances behind CSR, for instance, has been widely investigated by international politics scholarship and, to a lesser extent, by scholars of public international law (Detomasi 2008, 807-819; Ireland and Pillay 2009, 77-104; Bantekas 2004, 312). Similarly, also the final implementation of the law-making has been widely investigated and discussed; for instance, one can easily find many micro-studies on the construction and effects of new national legislation implementing a new mechanism of CSR, created in an international or supranational legal arena, in a certain economic and social local reality (Habisch and Jonker, 2005, 1; Palakshappa and  Chatterji 2014, 139-162).

Faced with this situation – a lack of interest on the part of legal scholarship – the fundamentally important matter of this project will be the construction and investigation of this central link connecting political instances (in a very broad meaning, i.e. as “so it should be” statements) with legislative measures (i.e. as “so it ought to be” statements). It is in this middle position that legislative policies are formulated, i.e. legislative strategies for finding the “best way” to implement a certain ideology as legislative measures; and it is a position which, up to now, has been mainly occupied either by legislative drafting scholars or by “practitioners,” namely legislative drafters (both private and public) and legal advisors to the political, economic, social, and cultural actors (Xanthaki 2013, 145-202; Cormacain 2017, 25; Xanthaki 2014, 13-16 and 39-41; Müller and Uhlmann 2013, 31-34).

2. Sketching some fundamental components of a middle-range theory of legislation

Looking at the basic elements of a possible theory of legislation, one should start from its nature, i.e. the question of “what is the character” of such a theory. As pointed out above, one can easily find several theoretical approaches to the political underpinnings of contemporary legislation (macro-theoriesof legislation) or to its concrete implementation (micro-theories of legislation). However, the field for constructing the theoretical frameworks focusing on the middle phase (between the political proposals and the drafting of the statutory provisions) is still relatively deserted (Zamboni 2007, 100-104, Aubert 1966, 342-345).

In this respect, probably the most appropriate form of theory for such a field, where various instances are transformed into legislative regulations, is the middle-range theory (Merton 1968, 66; Boudon 1991, 519-522; Hedström and Udehn 2011, 27-32). Transferring this idea of a middle-range theory to the field of legislation, this approach means that to better understand how this regulatory form acts and reacts in a decreasingly legislation-regulated world, this project will somehow set aside (at least at first) the basic philosophical questions (e.g. What is a “good” statute? Is legislation democratic?). Instead the most appropriate step will be the construction of a theory describing, discussing, and critically analyzing the institutional actors and structural paths through which such axioms can be (or are) implemented in a certain reality. In this way, the middle-range theory will not only able to bring to fruition fundamental axioms such as “democratic legislation” by setting them closer to a certain reality; it will also be a theory that can be used by “grassroots” legislators (e.g. drafters) as a standpoint and guiding light for how to start, conduct, and evaluate their everyday work. For instance, a middle-range theory offering a policy model for crowdsourcing in the legislative process, can result in good ideas such as “democratic legislation” to move from thought to action, to be used by practitioners themselves (e.g. legislative drafters) when it is time to open up the legislative process in a participatory direction (Rachordás 2017, 40-49; Aitamurto 2012, 30-33; Heikka 2015, 285-288).

Moving now to the second component this project will tackle in the shaping for a theory of legislation, this project will resort to Max Weber’s four types of rationalities (instrumental rationality, value-oriented rationality, emotion-based rationality, conventional rationality) (See Weber 1978, Ch. 1; Aron 1970, 219-317; Kalberg 1980, 1151-1159; Cotterrell 1995, 132). When applied to the legal phenomenon, such rationalities are the best analytical tools that allow the legal scholar to investigate and explain the different attitudes and motivations of various actors involved in the legislative process: from the emotional attitude of mass and social media to the instrumentality of the law for corporations, from the conventionality of legal actors to the value-oriented rationality of NGOs. The Weberian idea of some basic types of rationality will then become the analytical combinatory tool enabling legal scholars to systematize, investigate, and understand the attitudes and reasons behind the increased numbers of actors now involved in the legislative processes of a globalizing and globalized world (Skorkjær Binderkrantz 2014, 526-526; Mikuli and Kuca 2016, 4-8; Klüver, Braun and Beyers 2015, 450-453; Slaughter 2000, 1104-1112; Karpen 2012, 164-167;Peters and Pierre 2001, 132; Popelier, 2009, 357-370). 

Connected to this complexity of the area to which the rationalities should be applied, the middle-range theory of legislative processes will also be organized around the construction of various ideal-typical models of legislative policy. Similar to the utility of Weber’s ideal-types when applied to the complexity of social reality, these models of legislative policy can be intended as a heuristic device for mapping and consolidating ideas around some fundamental typologies in the complex world of contemporary legislative processes in a globalizing world (Weber 1949, 99-100; Jensen 2012, 69-73; Bruun 2016, 208; Waldron 1999, 658). The ideal-types of legislative policy will then be used as a sort of heuristic magnet, capable of drawing out the iron core of each contemporary legislation with respect to the various concrete issues under investigation, from the legislative policy dealing with the migration crisis in a certain European country to the legislative policy behind the scattered legislative regulation of the school system in a certain national reality. In short, the middle-range theory of legislation will be built around the need for creating models of legislative policy, i.e. various archetypes of legislation offering both political actors and drafters different solutions in the processes to implement certain politics via concrete statutory provisions (Zamboni 2007, 200-207; Miers and Page 1990, 11).

3. Preliminary work, the work ahead, and Supporting Networks

This large project is based on several pre-study works, which have led to the production of several articles on legislation, partly of which have been published and partly are under publication. Of these articles, a group has investigated some specific aspects of the legislative studies (e.g. the use of omnibus legislation, the idea of effectiveness in legislation, the goal and functions of legislation); moreover, the second group has evaluated specific implication of legislative policy choices (e.g. in migration law, in education law, or on the issue of basic income). The main objective of this project is to produce an extended monography that, starting from these preliminary studies, will develop a theoretical general framework capable of structuring and evaluating the legislative processes and results.

Another important component for developing and implementing this project is the use of institutional positions and specific sets of academic and professional networks I have been developed in the last years. Since 2015, as Senior Research Fellow, I have an intense collaboration with the Institute of Advanced Legal Studies, University of London (UK), the leading research institute in the world when it comes to legislative studies. Similarly, I am since 2012 Korea Legislation Research Institute Global Research Fellow, a research institute which has been considered as one of the most important centers for the legislative research in the world. I am also member of the Board (since 2015) for the International Association for Legislation, a world-wide network organization of both professionals and scholars operating in the world of legislation, and general editor for the UK-based journal Theory and Practice of Legislation (since 2011).

Since this project consists in a legal theoretical approach to the legislative processes and outcomes, I will greatly benefit for this part from sitting both in the Executive Board of the European Academy of Legal Theory (since 2010), the leading European association for legal theoretical scholars, and (since 2015) as Member of the Executive Committee for the International Association for Social and Legal Philosophy (I.V.R.), the world organization for legal philosophy, social philosophy, and legal theory, and to participate during the year to their conferences.