A Middle-range Theory of Legislation in a Globalizing World

Abstract

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. Several reasons for such “dis-interest” can be mentioned: the dominance of (a distorted version of) legal positivist paradigms in legal thinking; or a vision of democracy (also distorted) as the builder of a massive wall between the making of the law. In recent decades, many such institutional conditions have changed. However, 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 widened the gap between the process of creation of laws and their concrete implementation by the legal actors. 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. 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. 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). The purpose of this work 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 is 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).