Legislative Rationality Research Articles

ESSAY ON LAW AND POLITICS, IN SURVEILLANCE APITALISM

In “surveillance capitalism”, – politics and culture are being shaped by some big tech, but most people don’t realize it. Society has moved from the information age to the misinformation. The tools created began to unbalance Democracy and the relationships and functioning of society. These big techs only care about how to capture users' attention on their platforms, without thinking about the impacts. In this scenario that the State produces the laws that materialize the law. It is in this chaos that the application of the theory of dialogue and legislative rationality is suggested as a means of improving the design of the formation of law in the State, reducing the current crisis, crediting politics, maintaining peace and the current system in force.

Walking in the Dark: Lack in the Use of Criminal Statistics for Public Policy and Legislative Actions

As an exercise of sovereign power, the lawmaker adopts public policies to achieve certain ends. However, public policies need justifications. One such public policy is criminalisation of conduct whereby the lawmaker may have to use both doctrinal and empirical justifications. Such empirical justification is criminal statistics. All the three organs – the police, the prosecution office and the court – are required by law to collect and keep criminal statistics. Statistical data may not be available for initial adoption of legislation; yet they are essential inputs during the revision process. Even though criminal statistics do not define the outcome of the decision of the lawmaker, one would expect that they would be used as one major input for the continuous evaluation of such law. This article examines the use of criminal statistics in the adoption/revision of criminal provisions and finds that no criminal statistics is presented in the legislative process. This appears to be for two reasons. First , the various bills were drawn up and presented by agencies claiming to have specialisation on the subject; often, such agencies do not possess criminal statistics. Second , even for those bills drawn up by agencies with potential criminal statistics, the lawmaking process is skewed, that it does not demand aspiration to make ‘good’ laws. Key terms Criminal statistics · Criminalisation · Legislative reform · Legislative rationality

Sovereignty, Legitimacy and Fundamental Rights as Limitations to Criminalisation Power of the State

Sovereignty is a doctrine of power that constitutes and vests supreme political power in the state, including criminal lawmaking power. However, this supreme power of exercising coercive state power through the criminal law is not unlimited. Because the justifications for sovereignty are also justifications for criminal lawmaking power of the state, they are discussed together. After presenting the justification and legitimacy of sovereignty and the criminal lawmaking power of the sovereign, this article discusses criminalization power of the state in three parts: the limitation inherent in the notion of sovereignty, in constitutionalism and the bill of rights. Finally, it reviews the practice of criminalisation in Ethiopia. Key terms Sovereignty · Criminalization · Legitimacy · Principle theory · Legislative rationality · Coordination theory

Putting evidence-based law making to the test: judicial review of legislative rationality

ABSTRACTBoth at the European and at the Member State level, evidence-based law making is on the rise. So far, the attention has mostly gone to methods of ex ante evaluation used by the legislature. In this article, we argue that more attention should be paid to the role of courts as regulatory watchdogs. The CJEU seems to move in this direction by increasingly conducting a procedural (proportionality) review of legislation. However, the CJEU does not yet scrutinise the underlying data or the scientific evidence on which consultations, impact assessments and other forms of ex ante evaluation rest. This means that when these evaluations are based on poor quality data, this will also affect the CJEU’s judgement. For Dutch courts, the situation is different. They are so far unwilling to include ex ante evaluations or empirical data in a proportionality review of legislation, although the Advisory Division of the Council of State emphasises the principles of subsidiarity and proportionality in its policy-analytical review of draft legislation. This raises the question: why do courts avoid assessing the reliability of (scientific) evidence used by legislators and regulators? Here they might learn something from the US, where the Supreme Court developed its Daubert doctrine in order to guide courts in filtering out ‘junk science’ from the law-making process.

Tiers of Scrutiny in Enumerated Powers Jurisprudence

This Article identifies and analyzes the recent emergence of a “tiers of scrutiny” system in Supreme Court jurisprudence respecting the boundaries of Congress’s enumerated powers. The inquiry is motivated by the Court’s recent ruling on the federal healthcare law, which demonstrated that the national legislature’s election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power’s substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in the Constitution. Variation in the standard of review generates both synchronic and diachronic oscillation in the quantum of empirical justification and means-end rationality demanded of Congress. This observed heterogeneity in the judicial demand for legislative rationality and empirical evidence is quite distinct from questions of how broadly or narrowly the substance of each enumerated power is defined. This Article’s threshold contribution is a comprehensive documentation of variation in doctrinal formulae concerning the standard of review in enumerated powers cases. Having demonstrated the existence of tiers of scrutiny for enumerated powers, it then evaluates their use in enumerated powers jurisprudence. Drawing on political science scholarship, social choice theory, and public choice theory, it demonstrates that the Court’s use of tiers of scrutiny has deleterious effects on judicial and legislative incentives and behavior. This Article then identifies six potential justifications for the Court’s emergent practice of calibrating judicial review differentially by enumerated power. Closely examining each of those six justifications for stratified review, it finds all of them wanting. At the same time as it creates negative externalities, therefore, the practice of tiered review for enumerated powers lacks any compelling normative justification. By abandoning the emerging tiers of scrutiny and instead employing a lockstep approach to the review of enumerated powers, this Article suggests, federal courts would reduce opportunities for strategic behavior by judges and elected officials. The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.

Montesquieu and the ‘French’ Model of Separation of Powers

Constitutional scholarship has put much emphasis on Montesquieu’s principle of separation of powers as developed in the chapter of ‘The Spirit of Laws’ on the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu’s masterpiece. The starting point of this paper is that there is an alternative second model of separation powers based on the French monarchy of intermediate powers, which is also an instantiation of limited government. From this premise, the paper’s aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is ‘in between’ ancient and modern, as it is exemplified by Montesquieu’s take on the functioning of the Parliaments. As it is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch’s legislative rationality and legally constrains political action.

Information Competency and Pressure‐induced Legislation

基于媒体话语的压力型立法是立法者信息能力不足的产物。如果立法者的信息 能力不能有效应对现代法律规制活动的知识挑战，那么将无法抵御媒体话语过度渗 透，导致立法与媒体之间的关联过于紧密，形成一旦媒体热议、立法就积极跟进的压 力型立法现象。法律制度是具有恒常性的规则，而压力型立法往往失却应有的冷静、 客观、慎重与全面，展现出背离理性立法的内在机理的决策特点，引发一系列既不公 平、也无效率的再分配效应。压力型立法凸显了信息在公共政策选择和制度设计中的 重要性，应当实施立法绩效评估制度，以此为立法者重塑信息能力提供充分的激励， 确保立法的科学性与合理性。 关键词: 信息能力 媒体话语 压力型立法 利益再分配效应 Pressure‐induced legislation occasioned by media discourse is actually the result of an information deficit on the part of legislators. If legislators' information competency fails to meet the knowledge challenges of the modern legal system and its activities, they will be powerless to resist the infiltration of media discourse. The result is that legislative activities are inextricably intertwined with the media; once a particular social issue is catapulted on to the media agenda, legislators have no choice but to fall into line, creating the phenomenon of pressure‐induced legislation. The essential characteristic of law is its inherent constancy and stability, whereas pressure‐induced legislation often loses the calmness, objectivity, prudence and comprehensiveness proper to law. Such legislative decision‐making runs counter to the inherently rational mechanism of legislation and produces unfair and ineffective redistributive results. Pressure‐induced legislation highlights the importance of information in public policy choices and institution design. It would be desirable for the whole legal system aimed at evaluating legislative performance to be introduced so as to provide legislators with a sufficient incentive to remodel their information competency and ensure the scientific nature and rationality of legislation.

Balancing as a Guide to Legislative Reasoning

AbstractUp to the present day, the theories of legal reasoning have been concerned with reasoning in the stages of interpretation and adjudication of laws. However, if a fundamental feature of legal reasoning is that it is actually bound by laws, then the theory of legal argumentation should also consider to what extent legislative argumentation is an assumption of rational legal reasoning: if legal reasoning is, as Alexy states, a special case of the general practical discourse, and the speciality of legal reasoning is a consequence of the requirement of being bound by legal laws, then legislative rationality can be considered a premise of the rationality of law interpretation and adjudication.

Los argumentos de eficacia en el discurso parlamentario

Este trabajo aborda la relación entre justificación racional y eficacia de las leyes desde el punto de vista de una teoría de la argumentación parlamentaria. Dentro de este marco me centraré en la cuestión de cómo son tratados y qué relevancia tienen en el discurso de los legisladores los problemas relativos a la eficacia social del Derecho. Intento primero clarificar cuál es el papel de la eficacia en la racionalidad legislativa, para discutir luego, a propósito de la dimensión simbólica de las normas, en qué medida la argumentación durante (y después de) la formación de la ley condiciona su capacidad regulativa. Sobre esta base planteo un modelo para analizar los argumentos de eficacia en la discusión parlamentaria de las leyes y, a modo de ejemplo, lo aplico a los debates sobre la modificación del código civil español en materia de matrimonio.

Practical Reason and Legislation

AbstractThe author's starting point is Bobbio's theoretical approach to the problems of the relations between law and reason. He then appraises the meanings of reason and the concept of theoretical and practical rationality in the application of law. He examines the complex problem of the rationality of legislation and distinguishes five levels of rationality.

Congressmen's Voting Decisions

This classic study of voting decisions in the U.S. House of Representatives, based on extensive interviewing and observation, combines theory and substance, generalization and detailed description. With a new introduction, this influential and innovative book remains the best statement of the ways in which legislators reach decisions. The work contributes in critical ways to scholars' and students' understanding of such larger features of legislative process as representation of constituencies, the place of specialization in the making of public policy, the extent and types of legislative rationality, the importance of principles in decisions, and the place of legislatures in larger political systems.