{"title":"Regulatory capture in energy sector: evidence from Indonesia","authors":"I. Prihandono, E. Widiati","doi":"10.1080/20508840.2023.2248837","DOIUrl":"https://doi.org/10.1080/20508840.2023.2248837","url":null,"abstract":"ABSTRACT Regulatory capture reflects a phenomenon in which a regulatory agency, initially established to cater the interests of the public, formulates a policy based on private or ‘special’ interests. Actors within the legislative process are influenced by external parties or may even fall for regulatory capture as they have engraved a mindset that sides with the regulated industry. Regulatory capture is more likely to occur when there is a lack of public participation, transparency, and imbalance access to information. It is also much more prominent when the regulation is made to govern a profitable sector. Although regulatory capture has been numerously addressed, this paper focuses specifically on the challenges posed by regulatory capture in Indonesia’s energy sector, particularly with respect to one of its profitable sectors – the coal-fired power plant industry. Despite Indonesia’s expressed intention to transition to renewable energy and the apparent environmental impacts of coal-fired power plants, regulations regarding such a sector are still made to favour businesses. This relates to the fact that many political actors who hold positions as legislators and regulators also wield important positions in Indonesia’s coal-fired power plant companies. This paper illustrates the tension and struggle between the two contrasting interests of businesses and the public by looking into the theoretical framework of regulatory capture and public interests. Subsequently, it extracts the elements of regulatory capture and utilizes it to identify whether regulatory capture is inherent in Indonesia’s coal-fired power plant industry. Ways to prevent regulatory capture are further explored. In doing so, this paper resorts to a doctrinal and normative method. The analysis conducted leads to the conclusion that there are apparent signs of political influence in the coal-fired power plant industry, indicating the existence of regulatory capture. As such, measures to prevent and eradicate regulatory capture should be implemented by the government.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2023-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41765118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Operationalisation of legislation and the will of legislators in the judgments of international courts of war crimes and post-war recovery","authors":"Gregor Potočnik","doi":"10.1080/20508840.2023.2248834","DOIUrl":"https://doi.org/10.1080/20508840.2023.2248834","url":null,"abstract":"ABSTRACT\u0000 If the substantive truth, the actual situation in a war and post-war recovery based on the consequences of the war, is seemingly easy to determine in law, the judgments of international courts deciding on cases which occurred during the war do not attest to this. Substantive law is important, but procedural law is perhaps more significant with regard to rulings on war and post-war recovery. Only the highest degree of certainty is sufficient for a final and enforceable judgment. One of the key conditions for reaching a final and enforceable judgment is the consideration of the substantive and procedural conditions of proof, which is not possible without legal, relevant and legitimate evidence. This article argues that it should not be forgotten that in cases of legal proceedings against a certain military commander, the country whose armed forces they commanded is also always involved. If a member of a certain armed forces is legally convicted or acquitted, the country on whose behalf they acted as a military person in a military unit of that country is also legally convicted or acquitted. So, in international judicial proceedings, the implementation of procedural legislation and the will of legislators in war and post-war recovery has a different meaning from ‘ordinary’ criminality. War, as an extreme form of human violence which results in the biggest and most tragic events experienced by a country and its population, requires special forms of proving the consequences of war actions. The International Humanitarian Fact-Finding Commission should perhaps play a much greater role in this than it currently does.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2023-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45903385","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Observing law-making patterns in times of crisis","authors":"Ioannis Primpas","doi":"10.1080/20508840.2023.2225926","DOIUrl":"https://doi.org/10.1080/20508840.2023.2225926","url":null,"abstract":"ABSTRACT This article examines the impact of the acute economic crisis that began in late 2009 on the law-making way in Greece. Through an analysis of the legislation enacted between 2010 and 2015, a consistent pattern emerged: Each time the crisis intensified, the Greek governments resorted to ‘legislative acts of necessity’ bypassing the established rules of proper law-making to the detriment of the smooth function of parliamentary democracy.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2023-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44373329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Exploring the relationship between law and governance: a proposal","authors":"Aurelia Colombi Ciacchi, D. von der Pfordten","doi":"10.1080/20508840.2023.2215657","DOIUrl":"https://doi.org/10.1080/20508840.2023.2215657","url":null,"abstract":"ABSTRACT The present article assumes that it is possible to explore the relationship between governance and law in general, and try to conceptualise it as accurately as possible. This article intends to set the foundations for this exploration. At the same time, it explains why it would be useful to concentrate on four specific relationships between governance and law: (1) governance as law, (2) governance in the law, (3) governance through law, and (4) governance against the law. The article discusses the concepts of ‘governance’ and ‘law’ first separately (sections 2 and 3) and then in their mutual relationship (sections 4 and 5). The possible different relationships between governance and law are briefly outlined on an abstract level (section 4) and subsequently exemplified with reference to concrete phenomena of societal decision- and policy-making (section 5). The last section (6) draws a brief conclusion.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2023-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48777585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Governing during the COVID-19 pandemic","authors":"Osnat Akirav","doi":"10.1080/20508840.2023.2191568","DOIUrl":"https://doi.org/10.1080/20508840.2023.2191568","url":null,"abstract":"ABSTRACT We present a new perspective on government reactions to COVID-19 in terms of the stringency of their regulations to control it. Using the Government Stringency Index from the University of Oxford’s Coronavirus Government Response Tracker (OxCGRT) with a sample of 36 democracies, we determined that the governments’ regulations were less stringent when a woman was the head of the country, an oversized coalition was in office, and the country was not an island.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2023-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41468346","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Publish, explain, understand, and comply: Legislation in Plain Language","authors":"Germán J. Arenas Arias","doi":"10.1080/20508840.2023.2182980","DOIUrl":"https://doi.org/10.1080/20508840.2023.2182980","url":null,"abstract":"ABSTRACT The purpose of this paper is to systematize the political practice of three initiatives related to the concept of plain language on the Latin-American legislative arena. On the one hand, I explore part of literature on legislative studies to account for one of the communicative limits faced by legislation (Xanthaki, 2010, 2019) and on the other, present the instrumental nature of plain language to overcome this limit and achieve the widest possible dissemination of legislative messages for lay audiences. The work is based on a descriptive-analytical review of three public initiatives that inhabit three Latin America countries that, in turn, have in common a collective phenomenon called «Plain Language Networks». These Networks involve the parliaments of each country, and they are implementing (or have implemented) a very similar initiative: ‘Ley Fácil’ (Chile), ‘Ley Simple’ (Argentina) and ‘La ley en tu lenguaje’ (Uruguay). The paper draws, methodologically, on the results of a questionnaire sent to those responsible for the three initiatives, designed to understand their implementation in greater depth. Arguably, the initiatives are aimed and are framed by principles of open parliament, institutional strengthening, transparency, trust, and citizen participatory; my argument is that Ley Fácil (‘Eays Law’ (Chile)), Ley Simple (‘Simple Law’ (Argentina)) and La Ley en tu lenguaje (‘Law in your Language’ (Uruguay)) are, essentially, political pedagogy tools to increase the «ability of people to (i) access and (ii) understand the laws that govern their lives» (Roznai & Mordechay, 2016).","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49171010","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Research methodology in legislative drafting in Indonesia","authors":"Victor Imanuel W. Nalle","doi":"10.1080/20508840.2022.2141523","DOIUrl":"https://doi.org/10.1080/20508840.2022.2141523","url":null,"abstract":"ABSTRACT Research in legislative drafting in Indonesia is compulsory. Output of the research is academic paper (Naskah Akademik) which supports rationale needed for legislative drafting. This academic paper also provides logical and objective argumentation on significance of legislation. Even though research in legislative drafting has become a compulsory since 2011, academics and practitioners found several weaknesses in research methodology. This article discusses two major issues related to research methodology in legislative drafting (developing the academic analysis). The first is dynamics of legislative policy developments related to research methodology for developing academic paper for legislative drafting in Indonesia. The second is weaknesses of legislative policy developments related to research methodology for legislative drafting in Indonesia. This article shows that the national policy on legislation did not provide comprehensive guidance on research methods for developing academic paper for legislative drafting. The existing guideline discussed general issues, which affect quality of academic paper for legislative drafting. As an addition, academic paper for legislative drafting is treated as not more than complementary document for the drafting because it provided neither scientific justification nor arguments.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47692429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Direct democracy in the constitution: good or bad for democracy?","authors":"J. But, D. Jongkind, W. Voermans","doi":"10.1080/20508840.2022.2131150","DOIUrl":"https://doi.org/10.1080/20508840.2022.2131150","url":null,"abstract":"ABSTRACT Concerns about democratic decline and deficit have recently led to repeated calls for institutional changes that could enhance civil participation and direct voter participation in public decision-making (forms of direct democracy). An evergreen among the instruments proposed is the referendum, and in particular the constitutionally embedded referendum. This would grant a constitutional right to trigger a referendum and is something that is currently under consideration in the Netherlands. It is often assumed that constitutionally embedded referendums can correct systemic flaws in a representative democratic system, thus enhancing the overall democratic score of a country. This contribution considers these premises. By means of an empirical study, it examines whether the democracy index score of a country is related to constitutionally ratified rights to direct legislative influence of citizens, such as referendums and legislative initiatives by citizens. The initial results indicate that codifying referendum procedures as a constitutional right does indeed positively relate to the democratic scores of countries worldwide. This effect, however, does not hold true for the sample of EU countries studied.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49558141","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Gender-sensitive post-legislative scrutiny in theory and practice","authors":"Maria Mousmouti","doi":"10.1080/20508840.2022.2154455","DOIUrl":"https://doi.org/10.1080/20508840.2022.2154455","url":null,"abstract":"ABSTRACT Post-legislative scrutiny (PLS) enables an assessment of whether laws have met their intended objectives and outcomes. PLS can reveal achievements and errors in the design of legislation, achievements and gaps in implementation and broader positive and negative impacts that enable or hinder the achievement of regulatory results. Gender-sensitive post-legislative scrutiny (PLS) is PLS with a gender lens. Gender sensitive PLS is a strategic tool that can detect the impact of the law on gender equality. It can reveal the actual impact of legislation on men, women and gender inequalities, make visible biases, stereotypes and assumptions relating to gender and other characteristics, access, participation barriers and data gaps and improve the effectiveness of legislative initiatives. As a process, gender sensitive PLS requires a clear gender focus in the scrutiny, a gender sensitive data collection process and conclusions and recommendations that clearly highlight, among other findings, achievements and failures in relation to gender equality. Gender sensitive PLS is a powerful tool for gender sensitive Parliaments on the road to gender equality. Gender sensitive PLS can trigger legislative and institutional change, encourage advocacy, raise awareness and create ripple effects within Parliaments and other bodies around gender equality issues.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45940398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Gender-sensitive law-making: concept and process","authors":"Maria Mousmouti","doi":"10.1080/20508840.2022.2125704","DOIUrl":"https://doi.org/10.1080/20508840.2022.2125704","url":null,"abstract":"ABSTRACT Laws intervene in the life of all citizens but do not impact everyone in the same way. Different population groups are affected differentially on the grounds of their gender, race, age, disability etc, because of their different needs and situations and because of existing structural inequalities in society. This article examines gender as a determinant in law-making that extends throughout the life cycle of legislation. It argues that legislative decision making that takes into account gender concerns is the only way to produce gender-sensitive legislation that positively promotes gender equality and can achieve its aims (be effective). Gender sensitive Parliaments have a key role to play by scrutinising legislation from a gender perspective when laws are designed, implemented or evaluated ex post.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48542414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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