Theory and Practice of Legislation最新文献

{"title":"When the ends justify the means? Quality of law-making in times of urgency","authors":"R. Stern","doi":"10.1080/20508840.2020.1729549","DOIUrl":"https://doi.org/10.1080/20508840.2020.1729549","url":null,"abstract":"This article discusses how arguments related to urgency and crisis affected the quality of the legislative process in relation to three cases of law-making related to the so-called refugee crisis i...","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1729549","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44628717","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":"Quality of legislation meets migration policy – an introduction","authors":"P. Mindus, Elena Prats","doi":"10.1080/20508840.2020.1729554","DOIUrl":"https://doi.org/10.1080/20508840.2020.1729554","url":null,"abstract":"This special issue represents the first attempt of applying the canons of quality of legislation studies in the fields of migration and citizenship studies. Work, both scholarly and broadly speakin...","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1729554","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46800881","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":"Swedish legislation and the migration crisis","authors":"Mauro Zamboni","doi":"10.1080/20508840.2020.1729599","DOIUrl":"https://doi.org/10.1080/20508840.2020.1729599","url":null,"abstract":"This article explores and discusses the model of legislative policy adopted by Sweden in the wake of the 2015 migration crisis. In particular, it discusses the best legislative channel (or legislat...","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1729599","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48766613","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":"Legislative drafting tools preventing arbitrariness in discretionary powers","authors":"J. Silveira, Diana Ettner","doi":"10.1080/20508840.2020.1729552","DOIUrl":"https://doi.org/10.1080/20508840.2020.1729552","url":null,"abstract":"Despite the differences of approach that different national legal systems may adopt regarding discretionary powers, in general terms the main issue of discussion stays the same: Given that discretion is accepted and considered an essential legal technique in the context of administrative decisions, how, and to which extent, may discretionary powers be controlled and subjected to review by courts? The purpose of the present article is to discuss discretionary powers from the perspective of legislative drafting, with the aim to identify specific tools to be used by law-makers in order to prevent discretion from turning into arbitrariness. Therefore, starting from an analysis of Portuguese legal doctrine on the concept of discretionary powers, the present article will address three main issues. First, clarification as to how legal discretion is to be understood and how to identify discretionary powers granted by legislation. Second, identification of the advantages and disadvantages of legal discretion, in order to determine normative criteria according to which we can settle under which conditions discretionary powers in legislative drafting is to be employed or not. Third, identification of which legislative drafting tools may be used by lawmakers in order to grant discretionary powers. Overall, by focusing on lawmaking techniques, the article aims to demonstrate the extent to which legislative drafting tools, such as the ones identified in this article, are powerful tools to better identify discretionary powers in the law, but also to ensure that these powers are granted only when actually necessary. Taking into consideration that migration and asylum law usually involves reference to fundamental individual rights, the article argues that the provision of discretionary powers ought to be avoided whenever there are no solid and reasoned grounds for their use, so that discretion remains a tool for regulation and does not become arbitrariness.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1729552","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44842623","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":"Beyond decriminalization: the transition from relative transparency to deliberate ambiguity","authors":"Golan Luzon","doi":"10.1080/20508840.2019.1696082","DOIUrl":"https://doi.org/10.1080/20508840.2019.1696082","url":null,"abstract":"ABSTRACT This article explores the phenomenon of decriminalisation. Although there is no comprehensive definition of decriminaliszation, common descriptions reduce it to cases in which a certain conduct no longer deserves to be criminalised. This article argues that decriminalisation is a broad phenomenon, which can be found in various places in criminal law, and should be examined from the perspective of the law in transition from relative transparency to deliberate ambiguity. To this end, I analyze several legal approaches: pure decriminalisation, de facto decriminalisation, de-prioritization, substitution, reclassification, and types of camouflaged decriminalisation (restorative justice and plea bargaining).","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2019.1696082","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41819188","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":"The middle-out approach: assessing models of legal governance in data protection, artificial intelligence, and the Web of Data","authors":"U. Pagallo, Pompeu Casanovas, Robert Madelin","doi":"10.1080/20508840.2019.1664543","DOIUrl":"https://doi.org/10.1080/20508840.2019.1664543","url":null,"abstract":"ABSTRACT All models of legal governance and most regulatory options have to do with ‘top-down’ solutions as an essential ingredient of the approach. Such models may include ‘bottom-up’ forms of self-regulation, such as in forms of ex post regulation, or unenforced self-regulation. This paper focuses on what lies in between such top-down and bottom-up approaches, namely, the middle-out interface of the analysis. Within the EU legal framework, this middle-out layer is mainly associated with forms of co-regulation, as defined by Recital 44 of the 2010 AVMS Directive and Article 5(2) of the GDPR. However, there are also additional models on how we should grasp the middle-out layer of legal regulation, as shown by the debates on the governance of AI and the Web of Data. For example, the debates on issues such as monitored self-regulation, coordination mechanisms for good AI governance, and ‘wind-rose’ models for the Web of Data make it clear that co-regulation is not the only alternative to both bottom-up and top-down approaches. From a methodological viewpoint, the middle-out approach sheds light on three different kinds of issues that regard (i) how to strike a balance between multiple regulatory systems; (ii) how to align primary and secondary rules of the law; and (iii) how to properly coordinate bottom-up and top-down policy choices. The increasing complexity of technological regulation recommends new models of governance that revolve around this middle-out analytical ground.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2019.1664543","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44573074","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":"Outsourcing the law: a philosophical perspective on regulation","authors":"Ronan Cormacain","doi":"10.1080/20508840.2019.1697510","DOIUrl":"https://doi.org/10.1080/20508840.2019.1697510","url":null,"abstract":"","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2019.1697510","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43998166","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":"Public participation and its limits in legislative consultation: a case study on local legislation in China","authors":"Rongxin Li","doi":"10.1080/20508840.2019.1665280","DOIUrl":"https://doi.org/10.1080/20508840.2019.1665280","url":null,"abstract":"ABSTRACT Broadly defined, public participation, as a part of the legislation process is widely accepted in various political regimes for engaging more citizens into the enactment and amendment of laws, regulations and policies, including the one-party states like China. However, public participation in China’s legislation, often described as ‘authoritarian legislation’, faces various challenges. This includes the lack of mature and institutionalised participation mechanisms and poor quality of participation and discussion per se. This paper, therefore, takes the legislative consultation on ‘Regulations on Protecting Historical and Cultural City of Huizhou (Huizhou regulation) (Huizhou Regulation ranked as local regulation according to its legal effect. Commonly, according to article 100 of China’s Constitution, local legislation refers to the activities that the local legislative bodies (broadly, legislative body in China only refers to the National People’s Congress (NPC) and its Standing Committee. The empowered local legislative bodies refer to the Local People’s Congress (LPC) and its Standing Committee and local government) to enact local regulations and local government regulations.)’ as a case study to explore the role of public participation in China’s emerging municipal-level legislation process. It examines public participation in various innovative formats, such as the conventional form of legislative hearing, in addition to the fixed consultative group and expert discussion team, etc. While these participations aimed to act as a means of improving the quality and legitimacy of the local legislation, they did so within the authoritarian rule setting. Thus, this paper analyses these limits by discussing what the participation and discussion in local legislative consultation in the context of authoritarian legislation looks like, and it argues despite the challenge of authoritarianism, public participation in local legislation contributes, in a non-confrontational manner, to the scientification (Kexuehua 科学化) of legislation in the Chinese context.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2019.1665280","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43938947","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":"A model for determining legislative significance and effectiveness","authors":"Osnat Akirav","doi":"10.1080/20508840.2019.1568774","DOIUrl":"https://doi.org/10.1080/20508840.2019.1568774","url":null,"abstract":"ABSTRACT How do we determine whether laws are significant and effective? To answer this question, I used data from focus groups and content analysis of laws and newspaper articles to create a model to assess these two factors. In this model, three components of legislative significance are measured: the essence, extent and practicality of the law. The model also assesses legislative effectiveness by measuring three other components: public awareness about the issue, the gap between the intentions of the legislators and the implementation of the law, and the existentiality of the gap. In this study, effectiveness refers to achieving the goal of the legislation and is measured several years past after the date it was enacted. Significance and effectiveness are not separate concepts. They are connected on a time line. The first step in legislation is to understand whether it is significant, which leads to the second step – determining whether it is effective. I tested the model using three Israeli laws from 1987 (the minimum wage law), 1998 (the law against sexual harassment) and 2007 (the provision that outlawed smoking in public places to prevent exposure to second-hand smoke). The results demonstrate that the model is a useful tool for determining whether laws are significant and effective.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2019.1568774","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43086711","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":"Accountability of regulators through adaptable legal norms","authors":"Mirko Pečarič","doi":"10.1080/20508840.2019.1632051","DOIUrl":"https://doi.org/10.1080/20508840.2019.1632051","url":null,"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.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2019.1632051","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44164658","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}