Accountability of regulators through adaptable legal norms

Abstract

ABSTRACT Although the future is hard to predict, general legal rules do always address it. And while abstractness and generality are, by their pro futuro orientation, fundamental elements in the principle of equality, regulators usually cannot predict future events. This paper addresses this problem and gives a regulatory solution in the form of negative legislation and adaptable norms based on negative thinking. Regulators should look for negative and absent consequences, and based on them frame different future legal scenarios with different thresholds for different legal actions. When faced with different input data, a proposed legal norm switches its meaning (legal demand) like an electric relay. The proposed approach can avoid difficulties with the calculation of future probabilities, interpretation of discretionary norms or legal principles by building future elements into a decision-maker’s frame. Accountability and transparency can, therefore, be placed on a higher level. When a possibility of negative events can be rationally predicted, a legislator could be accountable when to these events the appropriate legal actions/rules were not legally prescribed before their appearance. When a possibility of negative events can be rationally predicted, a legislator could be accountable when to these events the appropriate legal actions/rules were not legally prescribed before their appearance.