Vol. 13 No. 5 (May 2003)

LEGISPRUDENCE: A NEW THEORETICAL APPROACH TO LEGISLATION, Luc J. Wintgens, (editor), Oxford-Portland: Hart Publishing, November 2002. 150 pp.  $90.00.  Hardcover.  ISBN 1-84113-342-6

Reviewed by Yu Xingzhong, Department of Government and Public Administration, The Chinese University of Hong Kong. Email: xzyu@cuhk.edu.hk

Published as one of the European Academy of Legal Theory Series books, and originally the proceedings of the Fourth Benelux-Scandinavian Symposium held in Turku (Finland) in 1998, LEGISPRUDENCE: A NEW THEORETICAL APPROACH TO LEGISLATION is a book applying legal theory to the study of important legislative issues.  The book touches on two major research fields: legislation and jurisprudence. The word legisprudence, probably derived from the Latin words: legis/lex (law) and prudentia (wisdom, knowledge), meaning legislative jurisprudence or a theory of legislation, is the catchy word the editor chose to articulate a new theoretical approach to the study of legislation. The traditional term describing the theoretical study of law and legal institutions, or things of and about law, is jurisprudence, a compound word also of the Latin origin: Iuris/Ius (law) and prudentia. Thus the implication of choosing the term legisprudence is that the substance of this study is closely related to jurisprudence, on the one hand, and directly involves legislation on the other.

The theoretical perspective presented in the book is new, not in the sense that legislation has hitherto failed to attract the eyes of legal scholars or philosophers. It is said that Aristotle developed a legislative science which, among other things, advocated the reliance on habit by lawmakers. Aristotle illustrated his legislative project with the art of gymnastics and medical analogy. In 1814, Friedrich Karl Von Savigny published his famous essay, THE VOCATION OF OUR TIME FOR LEGISLATION AND JURISPRUDENCE, which developed the view that the legal institutions of a people are, like their art or music, an indigenous expression of their culture, the Volksgeist and the national history. As such they cannot be externally imposed. Thus, he believed that legal codification represented an arbitrary interference with the natural product of the national consciousness. Jeremy Bentham, in THE THEORY OF LEGISLATION, devoted the whole first chapter to discussing principles of legislation, limits separating morals from legislation and false methods of reasoning on the subject of legislation.

The theoretical perspective presented in LEGISPRUDENCE is new in the sense that it calls into question the scope and focus of contemporary jurisprudential studies and proposes a new front for legal theoretical inquiry. It has increased the possibility of jurisprudential inquiry and raised with it a variety of new questions and problems that can be studied by legal theorists, including the creation of norms, their meaning, the structure of the legal system, legislative reasoning, and the problems that are tradi­tionally dealt with from the perspective of the judge, or are taken for granted by classical legal theory. It calls for a shift from the judge-centred research mentality to a legislation-oriented attitude in legal theoretical studies.

The book contains 10 articles and an introduction by the editor, addressing various issues concerning legislation common to most European legal systems. Several major arguments can be discerned from these articles. To begin with, there is an urgent awareness among the authors that current jurisprudence has paid too much attention to the judicial side of law, the consequence being that the legislative perspective has been left to languish. Jurisprudence should take up this long neglected field and shift its focus to consider the legislative side of the law. Luc Wintgens’s introductory piece sets the tone for the book, spelling out this awareness and placing the project of legisprudence within the context of contemporary legal theoretical discussion. This argument and awareness can certainly find resonance in scholars across the Atlantic Ocean. Julius Cohen, for instance, offered exactly same argument in his 1983 article, “Legisprudence: Problems and Agenda,” albeit with less ambition. Instead of advocating a new approach to legal theory, Cohen argued that legisprudence should be a coordinate branch of jurisprudence, parallel to what he called judicativeprudence, the study of the judicial component of the legal order.

Another major theme that finds consensus among the contributors to this collection is that, contrary to conventional wisdom, legislation—even though admittedly an instrument for politics and administration—can be studied rationally. This idea is woven into the fabric of the whole book, but it is expressively articulated in the editor’s introductory piece, in Kanko Pietila’s article on rationality of legislation in a sociological view, and in Kaarlo Tuori’s chapter on legislation, politics and law. Rationality of legislation, as understood by these authors, is different from rationality of adjudication. Tuori mentions three dimensions of rationality: object rationality, internal rationality, and normative rationality. Object rationality of law is measured by its ability to fulfil its social functions—i.e., to further the achievement of collective goals and to secure morally mediated social integration. Internal rationality relates to the internal consistency and coherence of the legal order. Normative rationality of the law is equal to its (normative) legitimacy.

Yet another major theme of the collection is the search for principles, especially the principles of European legislation. Christian Dahlman, in his article on the problem of ideological pluralism and legitimacy, argues that rules promote more legitimacy than principles but are less flexible. A combination of rules and principles which creates a form of coherence is superior to making the law ideologically homogeneous. Amaryllis Verhoeven argues, in her contribution focusing on European law, that reforming European law-making on the basis of parliamentary patterns at the national level does not offer a solution to the question of how to make European legislation more rational and democratic. Instead, European lawmakers should look to a procedural-deliberative model of democracy and find guidance in the principles and constraints contained in the European constitution, which they are bound to respect.

Stress has also been given to approaches to the study of legislation. Svein Eng discusses legislative inflation and the quality of law. He argues that legislation may be substantially flawed, technically flawed or means-end flawed, which contributes both to more laws and bad laws. Wim Voermans addresses the use of legal informatics to assure rationality of legislation. He argues that artificial intelligence can be employed to analyze and assist in law making, much the same as it has been used to simulate legal reasoning by judges. He introduces a drafting-support information system, called Legislative Design and Advisory System (LEDA), which was successfully used by Dutch legislative draftsmen. It guides users through an interactive drafting checklist and assesses legislative drafts to verify whether important drafting requirements are met. The final piece, written by Heinrich B Winter discusses the use of forum model in evaluating legislation. After emphasizing the growing importance of evaluation research on legislation, Winter examines specific cases in the Netherlands where three pieces of legislation, also alluded to by Voermans in his article, were evaluated. Having compared available evaluation methods, such as the barrier (input-output) model, and the garbage can (chaos) model, Winter articulates his own argumentation and communication model. He posits that the quality of legislation increases when more and better verifiable information is available regarding the circumstances under which the law will be expected to operate. He concludes from his research that systematic evaluation could lead to improved quality of law, since it would reduce strategic behaviour. He also cautions that not all systematic evaluation of legislation yields positive outcomes. For instance, when evaluation reports pretend to give more than provisional information on a law’s after-effects, the evaluation findings are misleading and of no value for improving legislation.

On the whole, LEGISPRUDENCE presents a comprehensive study of the issues relating to legislative production of law, ranging from conceptual and theoretical perspectives, to principles of legislation, to evaluative models and informatics, with European countries serving as the jurisdictional scope. It is unusual for issues relating to legislation to be dealt with in such a systematic manner and with such enlightened consciousness. The collection of articles in this book provide a good reference, not only for scholars interested in legislative process and issues, but also for legislative drafters. For developing legal systems, this collection may hold more significance, for it may inspire their law reformers and scholars to look at these issues more carefully and reflectively, and perhaps to follow some of the insights and advice presented to the reader.

REFERENCES:

Aristotle. 1932.  POLITICS. (Translated by H. Rackham). Cambridge: Harvard University Press.

Bentham, Jeremy. 1974. THE THEORY OF LEGISLATION. Dobbs Ferry, New York: Oceana Publications, Inc.

Cohen, Julius. 1983. “Legisprudence: Problems and Agenda,” 11 HOFSTRA LAW REVIEW 1163-1183.

Cohen, Julius.  1950. “Towards Realism in Legisprudence,” 59 YALE LAW JOURNAL 886.

Miers, David R. and Page, Alan C. 1990. LEGISLATION (2^nd Edition).  London: Sweet & Maxwell.

Savigny, Friedrich Karl von. 1831. THE VOCATION OF OUR TIME FOR LEGISLATION AND JURISPRUDENCE. Translated by Abraham Hayward. London: Littlewood & Co. Old Bailey.

Rubin, Leslie G. (ed.). 1997.  JUSTICE v. LAW IN GREEK POLITICAL THOUGHT. New York: Rowman & Littlefield Publishers, Inc.

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Copyright 2003 by the author, Yu Xingzhong.