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The use of legislation as a policy instrument is widespread
in modern welfare states. In the last decades the preservation of the benefits
of the welfare state has caused problems. During the period between 1960
and 1980 both the height of the collective costs and the amount of statutory
law were doubled. At the same time problems arose concerning the implementation
and enforcement of instrumental legislative rules. The cost aspect, the
decreasing effectiveness of instrumental legislation, and the increasing
number of inconsistencies in legislative systems became objects of concern.
Several modern legal theories offer explanations of the
failing effectiveness of state legislation, criticising the instrumental
view on legislation. Three of these theories will be analyzed. The first
theory to be discussed is the theory of reflexive law and autopoiesis, as
presented by Teubner. From a neo-evolutionary point of view on legislation,
Teubner identifies a new type of law that constitutes a reaction to the
instrumental crisis of the welfare state. This new type he terms `reflexive
law'. Furthermore, Teubner conceives of society as divided into subsystems
that are mutually closed. Transfer of information between the subsystems
is distorted by codes inherent in each subsystem. The second theory is the
`Dreistufen-Hypothese' (Three Stages-Hypothesis) of the Polish legal sociologist
Adam Podgórecki. Podgórecki explains the (in)effectiveness
of law by postulating three filters, the first on the individual level,
the second on the level of groups and the last one on the level of the whole
system, which together determine the effectiveness of law. Every legal rule
passes these three filters and is partly distorted by them. The third theory
is the theory of the `semi-autonomous social fields' of the legal anthropologist
Moore. Moore investigates the self-regulating capacity of groups, as well
as the different ways in which spontaneously developed rules interfere with
official law.
On important points, the theories complement each other.
By combining the models, a more comprehensive and differentiated view of
the problems of the effectiveness of legislation is achieved. However, little
attention is paid to the issue of the legitimacy of law. The observation
that the notion of instrumental law focuses on the steering content of legislation,
together with the general recognition that the classical principles are
in serious danger of being irreparably undermined in the welfare state,
puts the question of the legitimacy of instrumental law on the agenda. In
the light of this problem, it is finally examined whether the communication
theory of Witteveen can serve as a new theory of legitimacy. The form of
legitimation of modern law proposed by Witteveen (`dialogical legitimation'),
is a process in which legislation is constructed in two stages, in the initial
stage by the legislator and in the next stage by the `users'. It seems to
give enacted legislation a broader basis. The conclusion is that this alternative
formulation of the democracy principle relates legal validity to the effectiveness
of law. It can provide a solution to the problem of legitimacy as well as
the problem of effectiveness of modern law in the welfare state. Legal rules
acquire their ultimate meanings in a continuous process of interpretation.
In this process of legal transformation by interpretation, legislation can
be harmonized with prevalent ideas in the community. This serves to increase
the effectiveness of legislation. In addition to this, dialogical legitimation
must be able to offer legal safeguards fit to reinforce the safeguards of
traditional democratic legitimacy. Thus, a balanced system of complementary
guarantees can realize the ultimate objective of the constitutional state:
the protection of individual autonomy in society.
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