A famous quote, attributed to Otto von Bismarck, goes along the lines of “Laws are like sausages. It’s better not to see them being made”. One may well agree with the quote, thus accepting to remain ignorant about the law-making process, as long as one trusts the law-maker. It is precisely what happens with sausages, or more in general with food: if it tastes good, and the digestion process goes smoothly, it is wise to trust the head chef and not to inquire about how the cooking is done. On the contrary, if the outcome is not satisfying, then it is better not to trust too much the lawmaker and to follow and double-check the whole production process, no matter how tiresome and unpleasant this task.
Compared to Bismarck’s era, this task is much easier and accessible to all citizens nowadays, thanks to digital technology. However, the task still presents several hurdles and procedural technicalities and, moreover, risks hindering the traditional functioning of the lawmaking process. A head chef does not like to have too many eyes looking at her, someone could steal the secret ingredients! In a very similar way, when the addressees of new pieces of legislation follow the legislative process too closely, legislators tend to act with more difficulties and with a less favorable aptitude in negotiating compromises and finding agreements.
When the addressees of new pieces of legislation follow the legislative process too closely, legislators tend to act with more difficulties
All this helps to understand the reasons why the topic of confidence in legislation is crucial in our democracies. Partly due to the objectively low-quality of many laws and regulations, and partly to closer public scrutiny of legislative activity, the level of confidence in legislation has rather dramatically declined and needs to be rebuilt on different bases. This is why we discussed a suite of research papers focusing on the topic at the 2019 annual Conference of the International Association of Legislation-IAL.
“The crisis of confidence in legislation” (Nomos-Hart, 2020, edited by Maria De Benedetto, Nicola Lupo, Nicoletta Rangone) is the volume we reflect on in this post. Overall, we can examine the ways “sausages” are created and with what impact on trust in four ways:
Confidence is not only related to trust. It is also a possible consequence of controls. Furthermore, the Covid-19 pandemic is taken into consideration, as it has completely rewritten the geography of trust towards institutions at different levels of Government (countries, Europe, international), by affecting both trust in institutions as well as legislative effectiveness.
And distrust in legislation is not just a current phenomenon: in the period between the two World Wars, the virus of criticism of parliamentarism and legislation was widely in circulation. Such criticism influenced the institutional design of contemporary European constitutional democracies, as the birthing process of Constitutional Courts. Also on this basis, a possible roadmap to increase loyalty and trust in EU legislation has been designed: legislation should follow a step by step process, by firstly identifying the users of EU legislation, setting the pitch of EU legislative texts and (finally) defining a better structure for EU legislation.
The level of confidence in legislation has rather dramatically declined and needs to be rebuilt on different bases
More generally, better regulation tools can contribute to facing the crisis of confidence during the whole life-cycle of rules. On the one hand, better regulation accompanies the institutional process of the EU, where both territories and citizens are represented in Council and in the European Parliament. On the other hand, the tools of better regulation allow a constant interaction with citizens and stakeholders.
Impact assessment constitutes an arena with the potential to enhance trust within legislation, by opening the decision-making process to evidence and to consultation, as well as by imposing regulatory oversight over the entire process. In addition, effective consultation can activate a virtuous circle of better rules, acceptance, and public trust. However, the mere formalities of consultation are not enough. Effective consultation is needed in order to activate this virtuous circle, balancing the objective of increasing participation while at the same time collecting valuable contributions, without ossifying the decision-making process.
Parliaments can and should be essential players in fulfilling the potential of better regulation tools by overcoming the crisis of confidence in legislation, especially through the oversight of governments and independent bodies. The challenge is to deploy a real capacity to engage people in parliamentary work, by aiming, in perspective, to build a capital of civic trust based on the democratic governance of complexity. However, legal certainty is a shared responsibility of all government bodies because legislation has become more and more unstable and dependent on emotions and political slogans rather than on empirical analyses, in so doing the institutional system is rendered vulnerable to populist movements and trends.
Legislation has become more and more unstable and dependent on emotions and political slogans rather than on empirical analyses
Finally, we can look at legislation as a fiduciary institution and a form of human-made trust which has become ever more relevant considering the increasing scale of human co-operation. On the other hand, the lack of confidence is not necessarily directed at “legislation” as such, but it points to the “delivery” side of regulation, i.e. the institutions which are tasked with implementing it. The “sausages” matter when they are delivered on the plate -so to speak.
In countries where economic and social conditions have already weakened public trust, populism challenges governmental legitimacy and efficacy by falsely blaming legislation as being the cause of the crisis. Such an approach turns legislation into a scapegoat and fuels public distrust.
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