What “legisprudence” is or where it belongs within the academic landscape can, of course, be disputed. Yet, in our view, legisprudence is best conceived of as a critical-normative discipline dealing with the rationality and justification of legislation; and we further hold that it should be a key chapter of a general theory of law. In brief, we define legisprudence as that branch of jurisprudence which is in charge of the theory of legislation. This article seeks to ground these claims by providing a short overview of major legisprudential insights and topics, as well as of their implications for the study of law. We start with some brief remarks on the meaning, roots, and development of legisprudence as a distinctive theoretical project. Against this backdrop we introduce the core concern of legisprudential thinking: the problem of – and the aspiration to – rational lawmaking, along with the overarching principles on which practical reason in legislation can thrive and legisprudential validity be assessed. To conclude, we touch upon the implications of the legisprudential project on (regular) jurisprudence and suggest some open questions for future research.
Legisprudence as a Theoretical Project
The making of laws arouses the interest of a varied group of academics (political scientists, public policy analysts, sociologists, or economists), but one would expect us, legal scholars, to be the ones most interested in it. In the past two centuries, however, we have been largely concerned with applying, interpreting, or systematizing laws, but not with their creation; and still today we are used to treat legislation as a given, as if lawmaking fell beyond the scope of law studies. Legisprudence seeks to challenge this artificial split between the production of legal norms and their (re)construction and application, and offers a theory of legislation coming from within legal philosophy – though its object inexorably calls for interdisciplinarity (Richli 2000). Unlike other approaches, it addresses the making of laws as a juridical enterprise, trying to discern the potential and the limits of practical reason in legislation. Its major focus is on the justification of laws, in a parallel way as legal methodology focuses on the reasons for interpretative choices – the shared normative assumption is that legally binding decisions imply a claim to justifiability or rational acceptability. In legisprudence this normative drive does not boil down to a sheer moral-ethical judging of laws: as a critical discipline, it sets and relies on normative standards but is not committed to any particular axiological view or substantial conception of rights or values. The emphasis on legislative reason-giving distinguishes legisprudence from close relatives such as legistics, which concentrates on legislative drafting or technique, and is usually occupied with the formal qualities of laws. While legistics often include legisprudential aspects (Xanthaki 2014; Seidman et al. 2001; Morand 1999), it normally does not purport to give a general theoretical account of the justification of laws or of legislation as a rational process. Also some strands within public policy analysis touch upon the justification of laws, or take on a normative and even “argumentative” stance, but do so from a political perspective, thus largely overlooking the specificity of laws qua laws and the role of legislators as actors in a legal system.
Critical reflection on legislation is as old as legislation itself, and the spirit of legisprudence can be traced back long ago in the history of legal and political ideas. The theme of legislative wisdom and discussion of the requisite virtues of laws can be identified, for instance, in the works of Plato, Aristotle, Cicero, Isidore, Aquinas, or Suarez, to name just a few. But surely the crucial and most prolific moment in this tradition was the Enlightenment, with its irresistible faith in human reason pervading all spheres of theoretical and practical knowledge. During the eighteenth century in particular, great many authors elaborated on the attributes of the rational lawmaker and the requirements of la bonne loi. The enlightened nomophiles vindicated the qualities that laws should have as a rational expression of the will of the sovereign (eventually, the people’s will). Laws were seen as general, abstract, nonretroactive, systematic, clear, accurate, concise, and public (bodies of) rules enacted in pursuance of the common good and upon due reflection. In this light, legality acquired a new sense: laws were expected to stem not merely from a supreme political authority but from the dictates of reason. Legislative literature most visibly flourished in France or Italy (Montesquieu, Rousseau, Diderot, Condorcet, Mably, Muratori, Filangieri, Beccaria, etc.), but a similar wave spread in many countries pushing for legislative rationalization – whereby Bentham (1843, 1998) deserves special mention.
The science of legislation developed in this period was more than a speculative effort (cf. Mertens 2004). From the late eighteenth century onward, with some remarkable exceptions including Germany and the common law countries, the theory and practice of legislation merged into the codification movement. Roughly, this movement envisaged the “positivisation” of law through “codes”, i.e., pieces of legislation designed after mathematical patterns (more geometrico) to cover whole legal areas, initially civil and criminal law. Codes were an attempt to settle (positive) law upon rational foundations and endow it with a logical, systematic structure – the inheritance from iusrationalism cannot be overlooked here. This practical repercussion of the science of legislation was fuelled, inter alia, by states interested in monopolizing all legal sources and by a blooming liberal, capitalist ideology demanding legal certainty and equality before the law. At that time, legislation was not meant to be an instrument to actively mold or steer society but a framework within which society could govern itself; so the chief concern was to achieve a stable legal order and overcome an era of legislative chaos and judicial arbitrariness. A strong link between the rational making of laws and reliability in their application, as a cornerstone of the rule of law, was thus established to preserve liberal values: rational legislation would prevent judges from misusing their power.
Those who carried out the codification knew well that neither lawmakers nor laws can be perfect nor its application be entirely deductive or predetermined, as Portalis famously noted in his defense of the project of the French civil code. Yet, the fact that legislation was supposedly enacted upon the inspiration of reason was seized on to put its legitimacy out of discussion. In a sense, the “positivisation” gave rise to an ideology of legalism which has dominated western legal cultures for a long time. One of its major postulates is the view of legislation as a “given” starting point for juridical work: according to this view, jurisprudence deals with positive law only, i.e., the law once enacted or “posited”, and has nothing to say about its production. This neglect of legislation did not end when the naive, formalistic legalism of the nineteenth century was proven to be grossly mistaken. Advanced iuspositivistic approaches have still clung to the tasks of (allegedly neutral) descriptive analysis, interpretation, and systematization of law as a given, which continued pushing lawmaking out of sight.
The hegemony of the “law-as-a-given” paradigm has always been littered with dissonant voices. In the twentieth century, a handful of leading authors aired their discontent with judge-centered jurisprudence (Cohen 1983), readdressed the issue of legislative rationality (Wróblewski 1979; cf. also Bobbio 1971; Aarnio 1983), or even put the creation of law at the heart of their scholarship (Fuller 1969). Despite the reinvention of legislation theory by Noll (1973) and its ensuing growth in Austria, Germany, and Switzerland (Öhlinger 1982; Rödig 1976; Müller and Uhlmann 2013), jurisprudence nevertheless remained refractory to our topic until the 1990s, when lawmaking was recovered as a fundamental legal-theoretical issue (Atienza 1992; Dörbeck-Jung 1995; Wintgens 1999; Zapatero 2009; cf. Amselek et al. 1988; Tammelo and Mock 1986). Nowadays legisprudence seems to be gaining as much import as it had in the past. Among the many factors contributing to its upswing, one should recall first the irritation caused by the exponential growth, disorder, and accelerated production of laws – often associated with the regulatory state, a situation that a number of institutional initiatives at the EU level, for example, have tried to mitigate (Voermans 2009). In parallel, legal scholars increasingly realize that judges are no longer the central agents of the legal system and concede that the shortcomings of instrumentalism and the steering crisis of legislation in complex societies merit closer theoretical attention. The rise of constitutionalism has furthermore prompted an attempt to restore “the dignity of legislation” vis-à-vis judicial review (Waldron 1999a, b), and legislatures have begun to be studied as a decisive element of the legal systems (Bauman and Kahana 2006; Eskridge et al. 2014). Finally, the argumentative, post-positivistic turn in jurisprudence has brought the topic of reasonableness and the justificatory dimension of legal norms and practices to the foreground; and, albeit timidly, this focus has also stretched to lawmaking.
This is the context where legisprudence emerges as a distinctive project, trying to make sense of legislation as a rational activity belonging to the legal system in its own right, thus overcoming the divide between the (political) making and the (legal) application and interpretation of law. In this task, legisprudence receives the legacy of the Enlightenment, but its foundational question – what does rational lawmaking entail? – demands an updated response.
The Problem of Rational Lawmaking
Although there are serious disagreements about what “rational” as applied to the making of laws means – “evidence-based”, “good”, or “smart” pose similar difficulties – a legisprudential notion of “rationality” must account at least for three general, interrelated traits: plurality (or multidimensionality), gradualism, and boundedness.
Rationality in legislation is a complex attribute comprising several dimensions and must simultaneously be assessed against various criteria. Labels vary depending on schools or authors, but, in the last analysis, legislative rationality stands for some ideal array of linguistic, logical, epistemic, systematic, instrumental, and axiological aspects or “competences” (Ziembinski 1985). One-sided views dwelling on one aspect only (e.g., economic efficiency) or confined to a single standard (e.g., Weberian legal-formal rationality) are inevitably defective in terms of legislative justification. Atienza’s (1997) conception of rational lawmaking very well captures this complexity. He singles out five types or levels of rationality, i.e., five dimensions of legislative justification: linguistic (laws as normative messages must successfully be transmitted to their recipients), systematic (laws should fit in with the pre-existing legal order, i.e., must cohere and be logically consistent with it), pragmatic or social (defining the degree to which statutes are complied with by their addresses or are translated into fact), teleological or purposive (referring to the ability of laws to attain their goals with the least negative impacts), and ethical-moral (content and goals of legislation must be axiologically acceptable). Each of these “rationalities” correlates with ideals that legislators should strive for: intelligibility, systematicity, social realization, instrumentality, and normative correctness. Yet Atienza’s model includes an additional level: that of reasonableness. To this cross-dimensional criterion, he accords the role of a meta-rationality defining the achievement of a “balance” or “reasonable adjustment” between all other rationality levels (cf. La Spina 1989; Wintgens 2012). As a consequence, legislative rationality cannot be conceived as a binary property: it is a matter of grade and aspiration. Gradualism implicates, in other words, that there is no such thing as “one right answers” in lawmaking, but rather a leeway for rationally acceptable, reasonable choices. The normative condition upon which lawmakers are given a range of options is that they justify theirs. In this connection, legisprudence is based on the internal point of view of lawmakers who take their job seriously. This is not to assume an idealized picture of legislators. On the contrary, legisprudence recognizes that they are subject to many constraints defining the framework in which policy options are discussed and law is enacted. In spite of the appeal of the term, legislative rationality is necessarily limited and context-dependent. Borrowing from Simon (1983), one may say that it is “bounded”, conditioned by the inherent limits of human cognition and information processing, as well as other factors constraining or framing decision-making. Boundedness might even be regarded as the crucial circumstance of legislation. Hence our expectations of rationality on the side of lawmakers must be moderate. If legislative rationality has to play a guiding role, it must be looked at with realistic eyes, accepting that legislators must often settle for less than the best and content themselves with “satisficing” solutions, with trying to achieve a reasonable balance in view of the circumstances (Wintgens 2013; on the “sufficientist” version of reasonableness, Sartor 2009). This prevents a hasty disqualification of “imperfect” and suboptimal legislative choices but should not be used as a pretext: the bounds of rationality cannot excuse lawmakers’ justificatory negligence.
To recap, legisprudence approaches rationality in lawmaking as a pluralistic, gradual, and limited quality. It demands a satisficing degree of fulfilment of linguistic, legal-systematic, social, instrumental, and ethical-moral requirements, which further implies that lawmakers publicly state and discuss the reasons for what they decide. In the end, it is only in the offering up of legislative arguments and in deliberating over the degree of satisfaction of the different aspects of legislative rationality that lawmakers can be deemed rational. Drawing on these general ideas, now the issue is whether a theoretical framework can be developed which helps to deploy and assess legislative rationality in practice. In other words, how can we possibly determine the legisprudential validity of laws?
The notion of legisprudential validity presents a fruitful way to tackle the problem of legislative rationality. To put it simply, it serves to assess whether lawmakers have complied with fundamental tenets and requirements for the rational justification of laws.
Without precluding other conceivable foundations, a normative theory of rational legislation can be grounded on the basis of freedom, i.e., on the ultimate moral value of autonomy (Wintgens 2012). On this account, the outcomes of legislation, most typically statutory norms, are considered as external limitations of individual freedom. As such, these limitations ought to be reasonably justified, for which a principled framework is needed. This framework may be taken to consist of four basic legisprudential principles that should be honored whenever an external limitation of freedom through legislation is at stake – for otherwise it cannot be “legisprudentially valid.” Thus, legislators are bound to show, first, that there exists a failure in social interaction and legislative intervention is a better alternative than others suggested to remedy it (principle of alternativity); second, that interferences with freedom do not exceed what is really necessary, i.e., that there are no other, less intrusive legislative options available or other regulatory means or techniques like incentives which are likely to correct the failure – in short, a statutory norm must be justified by its normative density by “arguing out” weaker options (principle of normative density); third, that the envisaged legislation actually fits well into the pre-existing normative system, so that reasoned support for new laws is provided in view of the legal order as a whole (principle of coherence); and fourth, legislators are required to uphold laws over time, i.e., to make sure that the arguments for legislative decisions continue to be valid (principle of temporality). All four principles constitute an overall scheme for freedom-respecting legislation, but this scheme must be further specified into a more operative set of justificatory requirements or legisprudential duties. Such duties are demands on the production of laws determining how legislators must proceed in order to qualify as rational actors, thus showing that practical reason permeates their work; so the focus is not directly on the content of laws, but rather on how legislative choices are arrived at. Legisprudential duties, that is, amount to a due process (Linde 1976) or due method (Noll 1973) of legislation.
Even though characterizations may vary (cf. Boukema 1982), a due legislative method involves at least six core exigencies (Wintgens 2012): the duty to carry out “relevant fact finding” for the external limitation which the legislator is issuing and to state how legislative facts were gathered and analyzed; the duty of “problem formulation”, which presupposes justifying why a given state of affairs is undesirable; the duty of “prospection” or to take future circumstances into consideration (ex ante assessment of legislative impacts); the duty to “weigh and balance alternatives” in search of the legislative option which counterbalances any of the alternatives with a lower normative density than the external limitation proposed; and, finally, the duty of “retrospection” or ex post evaluation and the duty of “correction”, since lawmaking does not only require passing well-grounded statutes after careful deliberation but also entails attentiveness to their actual impacts and responsiveness to changing or emerging circumstances (cf. Flückiger 2007). For a normative theory of legislation, these six duties are inherently attached to the exercise of lawmaking powers and operate as a dynamic interactive set, i.e., they are interwoven: the fulfilment of one duty activates a subsequent duty that may in turn reactivate a preceding one. This intertwinement resembles a loop running back and forth: the more often legislators run through the loop, the less adjustments may be needed. If no readjustments are needed any longer, at any given moment in time, legislators will at least temporarily be discharged of their duties – legisprudentially speaking, laws cannot be justified once and forever.
It is important though not to misinterpret the “freedom approach.” Laws often limit freedom, but they also promote or enhance it. While legisprudential principles and duties may find a solid basis in the value of autonomy, legisprudence also reaches beyond freedom-limiting rules. As a theory of rational legislation, it must deal with other types of norms and needs not be attached to a liberal or a “neutral” model of law or to a formal conception of legality. Needless to say, living up to the tenets of formal legality remains crucial in many respects, but the current context requires an extended view. As a matter of fact, legislation has long ceased to be the legislation of the liberal state: it now comes under diverse forms and renders a variety of valuable social functions that no scheme of “rules backed with sanctions” could fulfil (cf. Westerman 2007). In order to cope with this transformation and keep pace with increasingly complex social environments, the legisprudential project can benefit from exchange with a wealth of theoretical approaches to legislation and regulation that have been developed in the last decades (Nonet and Selznick’s “responsive regulation”, Teubner’s “reflexive law”, Black’s “facilitative regulation”, etc.). Consider, for instance, interactive and communicative theories of legislation; they submit that laws are likely to be (more) legitimate and effective when both its formation and application occur through a continued collaborative effort between all relevant actors and stakeholders, whereby standards, principles, or “symbolic” norms play a key part. This account demonstrates that the classic command-and-control, cybernetic model of legislation based on precise rules is no longer, or at least not always, adequate to govern society. A symbolic mode relying on open norms may be more capable to accomplish desired legislative results in certain social settings or with regard to certain regulatory problems. In law production, that is, reflecting on what legislative design strategy is actually best suited in view of the intended goals and the social communities or fields addressed proves crucial (Witteveen 2005, 1999). This requires rethinking the question of symbolic law. Overcoming old negative views, the inclusion of symbolic elements in legislation, when connected to social practices developing and interpreting them, may increase chances of legislative success (van Klink 2016). This is but one single example of how legisprudence as a theoretical field keeps sensible to the current circumstances of lawmaking.
Implications and Open Questions
It looks obvious that legisprudence fosters our understanding of legal norm creation and provides those involved in lawmaking (including elected legislators) with theoretical, critical tools to perform better – which also helps to counterbalance the efficiency bias of some “better” regulation initiatives. But we claimed at the outset that it should form an important chapter of general jurisprudence (cf. Weinberger 1976) and would like to clarify this a bit further by pinpointing three implications of a “jurisprudence of legislation” – to borrow Waldron’s phrase.
To start with, a widened focus on lawmaking can enrich the theory of legal interpretation. Take, for example, the “rational legislator” postulate which has been at the heart of this theory in civil law systems. By virtue of this methodological fiction, legal provisions are interpreted as if they had been created by an ideal entity that followed rational criteria, and these turn out to match the hermeneutical canons generally used by jurists. This not only shows a continuum from legislative to dogmatic or judicial reason – when construing the meaning of laws, we “till” in the same work-field as legislators (Cohen 1983). As noted earlier, such criteria are often mutually conflicting, and the pursuit of one of them must be at the expense of other(s), so that a key issue in the theory of rational, viz., reasonable lawmaking reappears in statutory construction. In the study of legal interpretation, watching to the arena of lawmaking also helps to shed light on classical themes like the notion of legislative intent (Duxbury 2013) and even raises new ones: e.g., we still know little about the function of legislators as (pre)interpreters of the laws they pass or the interplay of this (pre)interpretation with ex post forms of statutory construction. So legislative jurisprudence urges us to abandon the familiar, somewhat schizophrenic view of lawmaking widespread among jurists: we discredit actual legislators as irrational political agents but work out our interpretations upon a fictional picture of what rational lawmaking consists of – a due assessment of legislative rationality is waived in either case. An in-between reading must be allowed for, so that we do not judge legislators to be irrational unless there is a well-grounded account of why they violate legisprudential standards (Wintgens 2013). In substituting aprioristic assumptions for empirically justified criticism, this reading enables a gradual qualification of legislative rationality.
Second, this perspective has a bearing on themes pervading jurisprudential discussions in recent years, such as the erosion of the rule of law and, in particular, the struggle as to who – lawmakers or courts – should have the ultimate authority over basic rights. While the rise of constitutionalism has vivified the juristocracy vs. democracy debate, scarce attention is being paid to the actual performance of legislatures and lawmakers as constitutional interpreters. Delving into a jurisprudence of legislation can play its part in this conflict; at the very least, before taking stance as to how the authority to constitutional interpretation should be distributed in democratic societies, it seems advisable to empirically study how capable the “other party” is to reasonably justify legislation affecting constitutional matters. One possible upshot of such a study might be that we rethink our judge-oriented argumentation standards or develop specific models for constitutional interpretation at the legislative stage. And this especially goes for those approaches adhering to an argumentative paradigm in law, which have often disregarded the theory and practice of legislative reasoning.
A third area of interest has to do with the legally binding dimension to legisprudence. That lawmakers undergo duties of justification can no longer be seen as a mere theoretical claim, for courts are more and more deploying legisprudential standards to review legislation. In modern democracies, lawmaking powers are only constrained by the constitution, and certainly no constitution was laid down to transform the theory of rational lawmaking into positive constitutional law. However, what may or may not be derived from constitutions (or analogously ranked texts) depends on their authoritative interpreters, and judges may well construe them in a way that obligates lawmakers to legislate better, i.e., more rationally. When embarking on such a construal, courts are juridifying tenets or insights that belong to the aspirational realm of legisprudence, and constitutional texts – enriched through judicial doctrines – may turn out to comprise a normative theory of lawmaking. To come to terms with this development, conventional legal scholarship needs a legisprudential twist.
Of course, current topics in legisprudence go beyond these areas (Meßerschmidt 2008; Gomes Canotilho 2009; Karpen and Xanthaki 2017). Although there is no space here to offer an illustrative list, at least some avenues of research are worth mentioning. One essential question is about the relation between (deliberative and representative) democracy and rational lawmaking: legisprudence cannot do without a focus on democratic inclusiveness and authenticity, for these are necessarily anchored in a rational process of legislative justification. Another promising path is the detailed investigation of particular lawmaking contexts or scenarios: some types of parliamentary laws – enacted, e.g., to delegate legislative powers, to (re)codify a legal sector, or to critically shape society in the long run – may require specific attention. And legisprudence must further account for the many faces of contemporary lawmaking. This obviously includes implementation and lawmaking by agencies and administrations – the term “regleprudence” has already been coined (Davidson and Leib 2015) in this connection – but also “regulation by technology” and “behavioral” modes of legislating or “nudging” should be critically considered under legisprudential light. And, having regard to the increasing importance and variety of international lawmaking processes (cf. Boyle and Chinkin 2007), the development of what might be called an international legisprudence poses another big challenge. Finally, in a world society, legal-theoretical reflection on legislation cannot be restricted to western traditions: cultural and legal pluralism must be given a place in the legisprudential project. In a manner, the scope of this project broadens to any institutionalized norm-giving practice or deliberate attempt to regulate social interactions. One might even say that a long-term goal for legisprudence is to evolve into a general theory of rational norm production. For the time being, however, the success of this discipline would lie in (re)conciliating the study of law and the study of its making.
The typical attitude of jurists when contemplating legislation is to complain. Without a thorough account of what a proper justification of legislation entails, one wonders to what extent this attitude is in turn justified. Until recent times, legal theory has concentrated on the interpretation and application of laws, considering judges as the main – if not the only – characters and neglecting the position of legislators and other agents involved in lawmaking. Legisprudence aims to shift the focus of legal theory to law production as one of its principal topics. Probably, the first enemy of this project is jurists’ proverbial, albeit misguided assumption that legislation cannot be subject to rational scrutiny or be studied with legal-theoretical tools, as if it were a subject matter for other social scientists. Such an assumption sounds very much like a self-fulfilling prophecy: we cannot expect to have reasonable lawmaking if we do not deepen into what legislative reasonableness involves. Not only has the neglect of lawmaking a negative impact on legal education but also on the very idea of a general jurisprudence. One can hardly speak of a “general” theory of law while leaving a vital province of its domain – lawmaking – unattended: theorizing law upon an artificial detachment of legislation from adjudication, in other words, is no longer acceptable.
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