Pub Date : 2022-05-04DOI: 10.1080/20508840.2022.2093496
Bo Ajibola, T. I. Odeyemi
ABSTRACT In recent times, discontented populations have increasingly leveraged public demonstrations and protests in expressing grievances and in making claims on political regimes. These demonstrations are sometimes not devoid of violence and destructions – incidences against which institutions of the state are arguably not immunised. At the inception of the 2020 #EndSARS protests against police brutality in Nigeria, legislative institutions, as linkers between government and governed, functioned as arguably the protests' primary conduit of communication to state actors, as protesters held sit-ins in front of legislatures and sought audiences with legislators. Paradoxically, at the climax of the protest, platforms of political representation, including constituency offices of legislators, were violently targeted by protesters. Between both endpoints – inception and climax – were exchanges between the legislature, executive and protest leaders in steering the direction of the protests. Hence, the legislative institution was at the centrepiece of the protests – a target by protesters and an admissible mediator of outcomes. Focusing on Nigeria's national and subnational legislatures, and drawing on documented reports, we answer the key questions: what explains protesters' targeting of legislative institutions during demonstrations and in what ways do legislative institutions mediate protest prospects and progression? Our analysis of the dynamics of legislature experiences during social emergencies induced by social movements leads us to a political neighbours hypothesis which underscores the targeting of legislative institutions based on their close proximities – by location and responsibility – to the people they represent.
{"title":"The legislature as target and mediator of ensuing outcomes during social emergencies: revisiting Nigeria’s #EndSARS protest","authors":"Bo Ajibola, T. I. Odeyemi","doi":"10.1080/20508840.2022.2093496","DOIUrl":"https://doi.org/10.1080/20508840.2022.2093496","url":null,"abstract":"ABSTRACT In recent times, discontented populations have increasingly leveraged public demonstrations and protests in expressing grievances and in making claims on political regimes. These demonstrations are sometimes not devoid of violence and destructions – incidences against which institutions of the state are arguably not immunised. At the inception of the 2020 #EndSARS protests against police brutality in Nigeria, legislative institutions, as linkers between government and governed, functioned as arguably the protests' primary conduit of communication to state actors, as protesters held sit-ins in front of legislatures and sought audiences with legislators. Paradoxically, at the climax of the protest, platforms of political representation, including constituency offices of legislators, were violently targeted by protesters. Between both endpoints – inception and climax – were exchanges between the legislature, executive and protest leaders in steering the direction of the protests. Hence, the legislative institution was at the centrepiece of the protests – a target by protesters and an admissible mediator of outcomes. Focusing on Nigeria's national and subnational legislatures, and drawing on documented reports, we answer the key questions: what explains protesters' targeting of legislative institutions during demonstrations and in what ways do legislative institutions mediate protest prospects and progression? Our analysis of the dynamics of legislature experiences during social emergencies induced by social movements leads us to a political neighbours hypothesis which underscores the targeting of legislative institutions based on their close proximities – by location and responsibility – to the people they represent.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42312883","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}
Pub Date : 2022-05-04DOI: 10.1080/20508840.2022.2093497
S. Oni, Moyosoluwa Dele-Dada
ABSTRACT The COVID-19 Pandemic has compelled governments across nations of the world to devise and implement emergency measures for curtailing the spread of the lethal virus. A fundamental debate is the relevance of legislature’s involvement in the emergency decision-making and the extent to which this representative assembly is able to assert its oversight role by making the government accountable to the public in emergency governance. Nigeria, like many other nations across the globe, has called upon government emergency powers to deal with the pandemic. This paper examines the imperative of legislative oversight of emergency governance and interrogates the extent to which the legislature has been able to monitor, control and make government accountable to the public in the COVID-19 emergency response in Nigeria. The study which is qualitative, relied heavily on secondary data and adopted a systematic literature review for data collection and analysis. Findings revealed the limited legislative oversight of government’s emergency declarations for dealing with the pandemic which further perpetuated executive dominance in the governance process of Nigeria. The invocation of the Quarantine Act of 1929 by the President instead of its state of emergency powers, the latter which constitutionally requires legislature’s oversight, and the subsequent issuing of COVID-19 regulations, portrays executive aggrandisement. The relegation of the legislative oversight in the use of emergency powers for responding to the COVID-19 pandemic enhances executive dominance and undermines the democratic principles of checks and balances with its concomitant implications for accountability, inclusivity and democratic legitimacy required in emergency governance.
{"title":"Legislative oversight and executive aggrandisement in the Nigeria’s COVID-19 emergency governance","authors":"S. Oni, Moyosoluwa Dele-Dada","doi":"10.1080/20508840.2022.2093497","DOIUrl":"https://doi.org/10.1080/20508840.2022.2093497","url":null,"abstract":"ABSTRACT The COVID-19 Pandemic has compelled governments across nations of the world to devise and implement emergency measures for curtailing the spread of the lethal virus. A fundamental debate is the relevance of legislature’s involvement in the emergency decision-making and the extent to which this representative assembly is able to assert its oversight role by making the government accountable to the public in emergency governance. Nigeria, like many other nations across the globe, has called upon government emergency powers to deal with the pandemic. This paper examines the imperative of legislative oversight of emergency governance and interrogates the extent to which the legislature has been able to monitor, control and make government accountable to the public in the COVID-19 emergency response in Nigeria. The study which is qualitative, relied heavily on secondary data and adopted a systematic literature review for data collection and analysis. Findings revealed the limited legislative oversight of government’s emergency declarations for dealing with the pandemic which further perpetuated executive dominance in the governance process of Nigeria. The invocation of the Quarantine Act of 1929 by the President instead of its state of emergency powers, the latter which constitutionally requires legislature’s oversight, and the subsequent issuing of COVID-19 regulations, portrays executive aggrandisement. The relegation of the legislative oversight in the use of emergency powers for responding to the COVID-19 pandemic enhances executive dominance and undermines the democratic principles of checks and balances with its concomitant implications for accountability, inclusivity and democratic legitimacy required in emergency governance.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49267286","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}
Pub Date : 2022-05-04DOI: 10.1080/20508840.2022.2104531
K. Asamoah, Bennet Kwadzo Nyadzi
ABSTRACT In the wake of the recently emerged COVID-19 pandemic, legislatures were regarded as one of the important government institutions that can help cushion nations against the economic and social disruptions inflicted by the health crises, given the important roles they play in policymaking within political systems. This paper examines the roles played by Ghana's legislative institution in the management of the COVID-19 pandemic. The paper further explores some of the challenges to legislative activities during the height of the pandemic. From a content analysis of a variety of literature drawn from Parliamentary Proceedings, online journal articles, official documents, and news from credible media outlets, we found that Ghana's legislative institution was crucial to the country's management of the pandemic as they played important roles such as passing COVID-19 related laws, financial oversight, and providing a check on Executive actions. The main challenge to Parliamentary activities was the demand for rapid legislation, which weakened Parliamentary oversight and scrutiny functions. The study makes some recommendations to strengthen legislative responses to future pandemics.
{"title":"An examination of the role played by Ghana’s legislature in the management of the COVID-19 pandemic","authors":"K. Asamoah, Bennet Kwadzo Nyadzi","doi":"10.1080/20508840.2022.2104531","DOIUrl":"https://doi.org/10.1080/20508840.2022.2104531","url":null,"abstract":"ABSTRACT In the wake of the recently emerged COVID-19 pandemic, legislatures were regarded as one of the important government institutions that can help cushion nations against the economic and social disruptions inflicted by the health crises, given the important roles they play in policymaking within political systems. This paper examines the roles played by Ghana's legislative institution in the management of the COVID-19 pandemic. The paper further explores some of the challenges to legislative activities during the height of the pandemic. From a content analysis of a variety of literature drawn from Parliamentary Proceedings, online journal articles, official documents, and news from credible media outlets, we found that Ghana's legislative institution was crucial to the country's management of the pandemic as they played important roles such as passing COVID-19 related laws, financial oversight, and providing a check on Executive actions. The main challenge to Parliamentary activities was the demand for rapid legislation, which weakened Parliamentary oversight and scrutiny functions. The study makes some recommendations to strengthen legislative responses to future pandemics.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44179228","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}
Pub Date : 2022-02-23DOI: 10.1080/20508840.2022.2040820
Tom West
Shallow lakes, it is said, tend to exist in one of two stable states: turbid and murky, or clear with abundant plantlife. And while lakes can shift between these two states, this often requires a greater change in external conditions, a greater shove, than might be expected. This is down to the ecological concept of hysteresis: the idea that making a change to the state of a system can depend on how it got there. The status quo can be favoured; and it can be much harder to shift away from the current state than to stick on the same path. ‘Democracy and Executive Power’ presents a case for a shift away from the status quo – for reform and improvement in the mechanisms that provide public accountability in executive decision-making. Rose-Ackerman’s analysis is based on four case-study countries – the US, the UK, Germany and France – but she applies her conclusions more broadly, in particular drawing attention to lessons that can be learnt both from and for Eastern European and South American experiences. Her core argument is that executive decision-making, as an unavoidable and significant component of modern governance, must align itself with democratic principles (most importantly accountability) and, to a lesser extent, must be attuned to expert input. The book displays the challenges in shifting the status quo – both in terms of the trajectory of a specific executive decision and in terms of the institutional structures that deliver public accountability – evoking the greater shove needed to move the shallow lake from murky to clear. Rose-Ackerman’s approach to executive power is both pragmatic and profound: the range of powers available to government departments and executive agencies to both set generally applicable rules and to make specific decisions with legal effects are here to stay. Attempts to diminish them are therefore misled and likely to have the (perhaps unintended) consequence of a reduction in democratic oversight. But the range of these powers is in democratic tension with the insufficiency of ‘ballot box democracy’: people seldom vote in national elections based on the approach the government will take to (eg) local development plans or particular food safety rules, no matter how important these issues are to them. And even if they did, general elections are neither frequent nor nuanced enough to transmit these views to decision-makers. This creates problems for
{"title":"Democracy and executive power","authors":"Tom West","doi":"10.1080/20508840.2022.2040820","DOIUrl":"https://doi.org/10.1080/20508840.2022.2040820","url":null,"abstract":"Shallow lakes, it is said, tend to exist in one of two stable states: turbid and murky, or clear with abundant plantlife. And while lakes can shift between these two states, this often requires a greater change in external conditions, a greater shove, than might be expected. This is down to the ecological concept of hysteresis: the idea that making a change to the state of a system can depend on how it got there. The status quo can be favoured; and it can be much harder to shift away from the current state than to stick on the same path. ‘Democracy and Executive Power’ presents a case for a shift away from the status quo – for reform and improvement in the mechanisms that provide public accountability in executive decision-making. Rose-Ackerman’s analysis is based on four case-study countries – the US, the UK, Germany and France – but she applies her conclusions more broadly, in particular drawing attention to lessons that can be learnt both from and for Eastern European and South American experiences. Her core argument is that executive decision-making, as an unavoidable and significant component of modern governance, must align itself with democratic principles (most importantly accountability) and, to a lesser extent, must be attuned to expert input. The book displays the challenges in shifting the status quo – both in terms of the trajectory of a specific executive decision and in terms of the institutional structures that deliver public accountability – evoking the greater shove needed to move the shallow lake from murky to clear. Rose-Ackerman’s approach to executive power is both pragmatic and profound: the range of powers available to government departments and executive agencies to both set generally applicable rules and to make specific decisions with legal effects are here to stay. Attempts to diminish them are therefore misled and likely to have the (perhaps unintended) consequence of a reduction in democratic oversight. But the range of these powers is in democratic tension with the insufficiency of ‘ballot box democracy’: people seldom vote in national elections based on the approach the government will take to (eg) local development plans or particular food safety rules, no matter how important these issues are to them. And even if they did, general elections are neither frequent nor nuanced enough to transmit these views to decision-makers. This creates problems for","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43489433","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}
Pub Date : 2022-01-02DOI: 10.1080/20508840.2022.2033943
Marissa E. A. A. M. Ooms
ABSTRACT This article examines the operation of transparency as a technique of power and rule in the governance of global mineral supply chains. It focuses on reporting and auditing practices associated with the Organisation for Economic Co-operation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. The due diligence regime sets norms to help corporations avoid the risk that their operations or mineral sourcing practices contribute to conflict and human rights violations. It manifests the widely held view that transparency is key to enabling the public to hold corporations to account for negative impacts of their practices. This article recasts risk-based due diligence reporting and auditing as techniques of rule ‘through’ law that are intrinsically unable to fulfil such normative objectives. In the minerals due diligence regime, ‘transparency’ is produced through the disclosure of risk management procedures, which involves a technical and abstract language that speaks to a corporate audience, but is unable to convey substantive information to stakeholders. Furthermore, the regulatory focus on risk management means that transparency techniques have an internal and procedural orientation towards the transformation of corporate systems of ‘internal control’. Risk-based due diligence reporting and auditing serve to disclose the corporation to itself and produce a perception of ‘responsible’ corporate subjects that improve risk management systems, while ‘the public’ is positioned as a passive audience of corporate performances of transparency and assurance. Thus, this article problematises the capacity of transparency-based regulation to facilitate the envisioned reflexive internal-external interaction between corporations and the public.
{"title":"Risk-based due diligence reporting in global mineral supply chains and the rule through transparency","authors":"Marissa E. A. A. M. Ooms","doi":"10.1080/20508840.2022.2033943","DOIUrl":"https://doi.org/10.1080/20508840.2022.2033943","url":null,"abstract":"ABSTRACT This article examines the operation of transparency as a technique of power and rule in the governance of global mineral supply chains. It focuses on reporting and auditing practices associated with the Organisation for Economic Co-operation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. The due diligence regime sets norms to help corporations avoid the risk that their operations or mineral sourcing practices contribute to conflict and human rights violations. It manifests the widely held view that transparency is key to enabling the public to hold corporations to account for negative impacts of their practices. This article recasts risk-based due diligence reporting and auditing as techniques of rule ‘through’ law that are intrinsically unable to fulfil such normative objectives. In the minerals due diligence regime, ‘transparency’ is produced through the disclosure of risk management procedures, which involves a technical and abstract language that speaks to a corporate audience, but is unable to convey substantive information to stakeholders. Furthermore, the regulatory focus on risk management means that transparency techniques have an internal and procedural orientation towards the transformation of corporate systems of ‘internal control’. Risk-based due diligence reporting and auditing serve to disclose the corporation to itself and produce a perception of ‘responsible’ corporate subjects that improve risk management systems, while ‘the public’ is positioned as a passive audience of corporate performances of transparency and assurance. Thus, this article problematises the capacity of transparency-based regulation to facilitate the envisioned reflexive internal-external interaction between corporations and the public.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44836598","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}
Pub Date : 2022-01-02DOI: 10.1080/20508840.2022.2033944
Laura Tafani
ABSTRACT The article is based on the observation of an increasingly poor quality of legislation in Italy which has led to citizens experiencing disaffection towards regulatory instruments and, at the same time, mistrust in the institutions responsible for producing, implementing and enforcing legislation. This situation has certainly become more and more serious during the Covid-19 pandemic with the adoption of regulatory acts containing rules that, on the one hand, severely restrict citizens’ freedoms and, on the other, are improvised, often contradictory and difficult to understand and interpret. Starting from this observation, the article analyses the reasons of this crisis, focusing on the complexity of a multi-level system, with the increasing influence of the legislation coming from the European Union, and on the growing weakness of parliamentary institutions and the consequent increase in government legislative power through ‘decree-laws’. The urgency and ‘occasionality’ that frequently characterises these law-making procedures are not compatible with a legislative design focused on better regulation tools, thereby making the commitment to clarity, consistency and homogeneity of legislative acts completely regressive. In this context, it is essential to increase the transparency of the legislative process and to enable citizens and stakeholders to take part in it, thereby restoring confidence in legislation. It is also necessary to bring together in the legislative rule-making process different professional skills and knowledge: legal, linguistic, economic-financial, statistical, social and even behavioural sciences. This will shape legislative intervention geared towards making regulatory acts as capable as possible of producing a phenomenon of spontaneous compliance with the objectives set by the legislation. Finally, these tools must be accompanied by a shift in political culture and a change in vision shared by all institutional actors, starting from Parliament, in order to recompose the material Constitution of the country on new bases.
{"title":"Enhancing the quality of legislation: the Italian experience","authors":"Laura Tafani","doi":"10.1080/20508840.2022.2033944","DOIUrl":"https://doi.org/10.1080/20508840.2022.2033944","url":null,"abstract":"ABSTRACT The article is based on the observation of an increasingly poor quality of legislation in Italy which has led to citizens experiencing disaffection towards regulatory instruments and, at the same time, mistrust in the institutions responsible for producing, implementing and enforcing legislation. This situation has certainly become more and more serious during the Covid-19 pandemic with the adoption of regulatory acts containing rules that, on the one hand, severely restrict citizens’ freedoms and, on the other, are improvised, often contradictory and difficult to understand and interpret. Starting from this observation, the article analyses the reasons of this crisis, focusing on the complexity of a multi-level system, with the increasing influence of the legislation coming from the European Union, and on the growing weakness of parliamentary institutions and the consequent increase in government legislative power through ‘decree-laws’. The urgency and ‘occasionality’ that frequently characterises these law-making procedures are not compatible with a legislative design focused on better regulation tools, thereby making the commitment to clarity, consistency and homogeneity of legislative acts completely regressive. In this context, it is essential to increase the transparency of the legislative process and to enable citizens and stakeholders to take part in it, thereby restoring confidence in legislation. It is also necessary to bring together in the legislative rule-making process different professional skills and knowledge: legal, linguistic, economic-financial, statistical, social and even behavioural sciences. This will shape legislative intervention geared towards making regulatory acts as capable as possible of producing a phenomenon of spontaneous compliance with the objectives set by the legislation. Finally, these tools must be accompanied by a shift in political culture and a change in vision shared by all institutional actors, starting from Parliament, in order to recompose the material Constitution of the country on new bases.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48430220","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}
Pub Date : 2022-01-02DOI: 10.1080/20508840.2022.2033945
Zsolt Ződi
ABSTRACT Algorithmic explainability has become one of the key topics of the last decade of the discourse about automated decision making (AMD, machine-made decisions). Within this discourse, an important subfield deals with the explainability of machine-made decisions or outputs that affect a person’s legal position or have legal implications in general – in short, the algorithmic legal decisions. These could be decisions or recommendations taken or given by software which support judges, governmental agencies, or private actors. These could involve, for example, the automatic refusal of an online credit application or e-recruiting practices without any human intervention, or a prediction about one’s likelihood of recidivism. This article is a contribution to this discourse, and it claims, that as explainability has become a prominent issue in hundreds of ethical codes, policy papers and scholarly writings, so it has become a ‘semantically overloaded’ concept. It has acquired such a broad meaning, which overlaps with so many other ethical issues and values, that it is worth narrowing down and clarifying its meaning. This study suggests that this concept should be used only for individual automated decisions, especially when made by software based on machine learning, i.e. ‘black box-like’ systems. If the term explainability is only applied to this area, it allows us to draw parallels between legal decisions and machine decisions, thus recognising the subject as a problem of legal reasoning, and, in part, linguistics. The second claim of this article is, that algorithmic legal decisions should follow the pattern of legal reasoning, translating the machine outputs to a form, where the decision is explained as applications of norms to a factual situation. Therefore, as the norms and the facts should be translated to data for the algorithm, so the data outputs should be back-translated to a proper legal justification.
{"title":"Algorithmic explainability and legal reasoning","authors":"Zsolt Ződi","doi":"10.1080/20508840.2022.2033945","DOIUrl":"https://doi.org/10.1080/20508840.2022.2033945","url":null,"abstract":"ABSTRACT Algorithmic explainability has become one of the key topics of the last decade of the discourse about automated decision making (AMD, machine-made decisions). Within this discourse, an important subfield deals with the explainability of machine-made decisions or outputs that affect a person’s legal position or have legal implications in general – in short, the algorithmic legal decisions. These could be decisions or recommendations taken or given by software which support judges, governmental agencies, or private actors. These could involve, for example, the automatic refusal of an online credit application or e-recruiting practices without any human intervention, or a prediction about one’s likelihood of recidivism. This article is a contribution to this discourse, and it claims, that as explainability has become a prominent issue in hundreds of ethical codes, policy papers and scholarly writings, so it has become a ‘semantically overloaded’ concept. It has acquired such a broad meaning, which overlaps with so many other ethical issues and values, that it is worth narrowing down and clarifying its meaning. This study suggests that this concept should be used only for individual automated decisions, especially when made by software based on machine learning, i.e. ‘black box-like’ systems. If the term explainability is only applied to this area, it allows us to draw parallels between legal decisions and machine decisions, thus recognising the subject as a problem of legal reasoning, and, in part, linguistics. The second claim of this article is, that algorithmic legal decisions should follow the pattern of legal reasoning, translating the machine outputs to a form, where the decision is explained as applications of norms to a factual situation. Therefore, as the norms and the facts should be translated to data for the algorithm, so the data outputs should be back-translated to a proper legal justification.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42919190","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}
Pub Date : 2022-01-02DOI: 10.1080/20508840.2022.2033941
C. Andone, Candida Leone
The Theory and Practice of Legislation has been publishing research aimed at making a contribution to understanding, interpreting and assessing the quality of legislation. Many special issues have been dedicated to the examination of legislation, both at national and international levels. To this day good quality legislation has remained most relevant, against a background of multi-level governance, persistent crises in which legislation is enacted at a faster pace than ever before, and common accusations of a larger gap between citizenry and governments. It is against this background that we propose to the readers a special issue focusing on the clarity, transparency and legitimacy in rule-making with a special attention to legal language. Good quality legal language is a precondition for obtaining compliance from addressees and increasing comprehensibility by citizens. Understanding what is required and what can be expected of legal language in different rule-making contexts is, in turn, a fraught terrain which requires both empirical and normative awareness. Yet the legal language of national and international legislation and regulation, alongside court rulings, remains an under-appreciated commodity, which is more often than not abused or even completely ignored, rather than problematised and improved. From a scholarly perspective, understanding legal language with an eye to connecting (normative and linguistic) clarity with substantive transparency (towards embodied users) and their relevance to legitimacy can generate important knowledge about the functioning of legal institutions. From a practical perspective, legal language is the litmus test for legislators and regulators in order to convince their addressees of the acceptability of their proposals. This special issue highlights two main messages emerging through a set of diverse contributions: first, legal language is a multi-faceted problem including matters of argumentation and persuasion, comprehensibility, ethics, transparency, and accountability; second, all these dimensions can only be
{"title":"Talking law. Clarity, transparency and legitimacy in rule-making","authors":"C. Andone, Candida Leone","doi":"10.1080/20508840.2022.2033941","DOIUrl":"https://doi.org/10.1080/20508840.2022.2033941","url":null,"abstract":"The Theory and Practice of Legislation has been publishing research aimed at making a contribution to understanding, interpreting and assessing the quality of legislation. Many special issues have been dedicated to the examination of legislation, both at national and international levels. To this day good quality legislation has remained most relevant, against a background of multi-level governance, persistent crises in which legislation is enacted at a faster pace than ever before, and common accusations of a larger gap between citizenry and governments. It is against this background that we propose to the readers a special issue focusing on the clarity, transparency and legitimacy in rule-making with a special attention to legal language. Good quality legal language is a precondition for obtaining compliance from addressees and increasing comprehensibility by citizens. Understanding what is required and what can be expected of legal language in different rule-making contexts is, in turn, a fraught terrain which requires both empirical and normative awareness. Yet the legal language of national and international legislation and regulation, alongside court rulings, remains an under-appreciated commodity, which is more often than not abused or even completely ignored, rather than problematised and improved. From a scholarly perspective, understanding legal language with an eye to connecting (normative and linguistic) clarity with substantive transparency (towards embodied users) and their relevance to legitimacy can generate important knowledge about the functioning of legal institutions. From a practical perspective, legal language is the litmus test for legislators and regulators in order to convince their addressees of the acceptability of their proposals. This special issue highlights two main messages emerging through a set of diverse contributions: first, legal language is a multi-faceted problem including matters of argumentation and persuasion, comprehensibility, ethics, transparency, and accountability; second, all these dimensions can only be","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45481466","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}
Pub Date : 2022-01-02DOI: 10.1080/20508840.2022.2033942
C. Andone, Florin Coman-Kund
ABSTRACT This paper starts from the premise that argumentation in EU (Commission) soft law instruments is essential for their effectiveness, mainly due to its function to persuade addressees as a means to enhance compliance. Notwithstanding their importance in the EU legal-political landscape, the problem is how to ensure that these instruments devoid of formal legally binding force can function as effective governance tools by convincing addressees to comply, particularly during crisis periods such as the Covid-19 crisis, when fast and effective action is urgently needed. By pointing at a number of significant legal problems and concerns deriving from the Commission’s ‘hardened’ soft law instruments, we suggest a normative approach focusing on the potential of EU soft law instruments to act as highly persuasive tools. By making the instruments’ argumentation a core concern, we examine its role as a means to improve the intrinsic quality of EU (Commission) soft law and to foster effective compliance. To this end, we propose a theoretical-analytical framework combining insights from law and argumentation theory, that puts forward an argumentative toolbox for the analysis and assessment of EU (Commission) soft law instruments. This toolbox comprises four argumentative parameters that need to be taken into account in the drafting and evaluation of EU (Commission) soft law instruments: (1) the content of the argumentation, (2) the design of the arguments pointing at persuasive suggestions for cooperation, (3) the factors influencing argumentative effectiveness, and (4) the soundness of argumentation.
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Pub Date : 2022-01-02DOI: 10.1080/20508840.2022.2033946
Iris van Domselaar
ABSTRACT In the Netherlands over the last decade, a range of initiatives have been launched by individual courts, mostly on their own initiative, to make court rulings more comprehensible to average citizens. At the outset, at least from the ‘internal point of view’ of legal practitioners, it might seem striking that these initiatives predominantly address the comprehensibility of legal language as an exclusively linguistic matter, independent of any jurisprudential stance as to what ‘doing law’ should consist of in this context. However, this linguistically-oriented approach is far from eccentric: it dovetails nicely with the dominant approach adopted by the plain legal language movement to make the law more comprehensible to citizens. Against the background of a language as activity view, this article analyses and evaluates the use of comprehensible legal language by courts. To do this, an integrative legal–ethical approach is employed, according to which the content and style of court rulings are inextricably linked. More specifically, the Aristotelian concept of civic friendship is introduced as having potential explanatory force for the practice of plain legal language use by Dutch courts. With reference to actual court rulings, it is argued that this concept allows us to conceive of a ‘plain’ court ruling as a potential expression of a civic-friendly attitude by the judge. In addition, the main dilemmas that civic-friendly judges will be likely to face when writing a comprehensible court ruling are identified. Finally, and on a more critical note, a fundamental concern is raised regarding the practice of plain legal language use by Dutch courts.
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