Bottom-up versus Top-down Lawmaking

Abstract

Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process presents the underlying legal issue from a different cognitive perspective, highlighting and hiding different aspects of a legal problem. The single-case perspective of adjudication can seem cognitively inferior to the broad perspectives that legislatures can incorporate into their decision-making processes, but adjudication also has its advantages. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate that adoption of simple, elegant rules for decision making. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts.