CREI Working Paper no. 2/2014
MAINTENANCE OF RULES
by
Maria De Benedetto
University of Roma Tre and CREI
available online at http://host.uniroma3.it/centri/crei/pubblicazioni.html
ISSN 1971-6907
Outputs from CREI research in progress, as well contributions from external scholars
and draft reports based on CREI seminars and workshops, are published under this
series. Unless otherwise indicated, the views expressed are attributable only to the
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
Maintenance of rules*
Maria De Benedetto†, DISP University of Roma Tre and CREI
ABSTRACT:
The maintenance of rules is an emerging and relevant function of every kind of regulators in
contemporary legal systems. If we look at history, it has always been present in order to respond to
a diversity of needs, such as making rules accessible, or correcting and reforming them. Alongside
maintenance in a stricter sense (the specific interventions of compilation, consolidation, revision),
there is an increasing request for maintenance in order to ensure the quality of rules: it is, in fact,
necessary to evaluate the effects of rules, mainly because of the fallibility of regulation.
Maintenance of rules has therefore become an institutional function which completes (and no longer
serves) legislation.
Keywords: legislation, regulation, quality of legislation
I am grateful for useful comments on earlier draft in Italian to Nicoletta Rangone, Antonio La Spina, Nicola Lupo.
For helpful comments on drafts of this paper, I am especially grateful to Luzius Mader, Ulrich Karpen and Wim
Voermans. I would like to thank also Robert Baldwin and Helen Xantachi who gave me suggestions on the topic.
Finally, I would like to thank an anonimous referee of the “European Journal of Risk Regulation” who gave me a
number of very helpful critics and comments. The responsibility is mine alone.
† Corresponding Author: maria.debenedetto@uniroma3.it
*
1
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
Table of contents
1.
Which maintenance for which rules? ........................................................................................................ 3
2.
Maintenance of rules: purposes and object............................................................................................. 5
3.
Historical roots of maintenance ................................................................................................................11
4.
How maintenance is changing ....................................................................................................................15
4.1. Reasons for change .....................................................................................................................................16
4.2 Maintenance and quality of rules...........................................................................................................17
4.3 Kinds of maintenance (compilation, consolidation, revision, reform) ....................................20
5.
The modern legislator walks on two legs: law-making and law-maintenance .......................23
Bibliographical references....................................................................................................................................26
2
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
1. Which maintenance for which rules?
This article argues that new attention has to be paid to the maintenance of rules where
maintenance refers both to the strict traditional processes of reviewing, revising and updating
rules (always present) and to the wide emerging processes of regulatory evaluation,
implemented in order to ensure the effective results of rules.
What do we mean when we talk about rules?
First of all, we mean individual rules, legal standards1 which could be part of different kinds of
legislation2.
An individual rule may, also, express a regulatory content when imposes obligations (i.e. a
command) which affects the activities and the organization of its addresses3. This regulatory
content strongly links the rule to its consequences4, also requiring regulatory evaluation of its
impact5.
The problem of maintenance has been considered from a more general point of view, in the
framework of Regulatory Reform, demanding that Governments implement specific activities
See R. Dworkin, Taking Rights Seriously, Harvard University Press, 1978, (first edition 1977), p. 24 onwards:
“rules are applicable in an all-or-nothing fashion”
2 See C. Coglianese, Evaluating the impact of regulation and regulatory policy, OECD Expert Paper No. 1, August
2012, p. 8: “Regulations can also derive from any number of institutional sources – parliaments or legislatures,
ministries or agencies […] Given their variety, regulations can be described using many different labels:
constitutions, statutes, legislation, standards, rules, and so forth. What label one uses to refer to them will not
matter for purposes of evaluation”.
3 See M. De Benedetto, M. Martelli, N. Rangone, La qualità delle regole, Bologna, Il Mulino, 2011, p. 12-13
4 See C. Coglianese, R.A. Kagan (ed. by), Regulation and Regulatory Processes, Ashgate, 2007, p. xi; on this point,
see J. Black, Enrolling Actors in Regulatory Systems: Examples from Uk Financial Service Regulation, in “Public
Law”, 1, 2003, p. 69: “this is the real heart of the regulatory function: how to alter behaviour so that people act in
the way that they would not otherwise do, and in such a way a sto ensure that the objectives of the regulatory
system are met”.
5 On this point, C. Coglianese, Evaluating the impact of regulation and regulatory policy cit., p. 9
1
3
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
in order to maintain the stock of rules6, while regulatory evaluation has become the way by
which specifically unintended and unexpected consequences7 of rules are identified.
Indeed, if legislation is a tool for regulation8, it should be viewed not only as the sum of
binding legal provisions designed to achieve political consensus on the good formal quality of
a normative text, but as a collection of regulatory rules, which aims to achieve its objectives,
to solve problems9 and to avoid (as far as possible) regulatory failures10. In this sense,
legislation should be structured by ex-ante and ex-post evaluation, strongly oriented towards
being effective11 and requiring not simply strict maintenance activities but also the already
mentioned wide maintenance: when legislation has a regulatory content it would be better to
adopt a regulatory logic.
Starting from these premises, the article is organised as follows: section 2 looks at the concept
of maintenance, at its purposes and object; section 3 takes a look at strict maintenance from
an historical perspective; section 4 reviews the renewed emphasis on maintenance, its link
regulatory evaluation and describes different kinds of maintenance interventions; section 5
APEC_OECD, Co-operative iniziative on Regulatory Reform, Symposium on Structural refom and Capacity
Building, 2005, p. 29: “regularly appraising the stock of rules (ensuring that rules remain relevant)”. See also,
OECD, Report “From intervention to regulatory Governance”
7 European Commission, Strengthening the foundations of Smart Regulation – improving evaluation COM(2013)
686 final, p. 3. On this point, see C. Radaelli, O. Fritsch, Evaluating Regulatory Management Tools and Programs,
OECD Expert Paper No. 2, July 2012
8 On this point, see OECD, Report on Regulatory Reform, 1997: “regulations include laws, formal and informal
orders, and subordinate rules issued by all levels of government, and rules issued by non-governmental or selfregulatory bodies to whom governments have delegated regulatory powers”
9 See S.G. Breyer, R.B. Stewart, Administrative Law and Regulatory Policy, Little Brown and Company, 1992, p. 56
10 See R. Baldwin, M. Cave, M. Lodge, Understanding Regulation. Theory, Strategies and practice, Oxford
University Press, 2012, p. 68
11 A. Ogus, Regulation. Legal Form and Economic Theory, Oxford-Portland Oregon, Hart Publishing, 2004, p. 90.
See also, J.B. Auby, T. Perroud (eds.), Regulatory Impact Assessment/La evaluación de impacto regulatorio,
Global Law Press/Inap, 2013
6
4
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
concludes that the search for good regulation must involve a strategy of rule maintenance at
its heart.
2. Maintenance of rules: purposes and object
Functions of maintenance of rules have been present in legal systems for centuries with the
purpose of responding to a diversity of needs. Traditionally, maintenance has been oriented
to increase public accessibility of rules and to allow their correction and their reform, as we
will see later (par. 3).
However, even in a revolutionary historical period, legal systems are never completely new
and, in contemporary law, maintenance of stock of rules is increasingly relevant.
I will try to argue that maintenance of rules is a cross-system question, even if comparison of
law-making in different legal systems is not a simple task because “the terms used for these
activities vary from country to country and should often be understood within a particular
legal or administrative context”12.
Maintenance of rules is, however, becoming more important because it operates nowadays in
a context characterised by an exponential growth of legislation 13: legislative inflation
E. Donelan, European approaches to improving access to and managing the stock of legislation, in “Statute Law
Review”, 2009, p. 167. See, also, T. Dallon, Codification and consolidation on the law at the present time, in “Israel
Law Review”, 1979 and G.J. Drewry, Law-making systems – how to compare, in “Statute Law Review”, 2008, p.
100. See also the question analysed in W. Voermans, Styles of Legislation and Their Effects, in “Statute law
Review”, 2011, p. 38.
13 On this point, see S. Eng, Legislative inflation and the quality of law, in L. Wintgens (ed. by), Legisprudence,
Hart Publishing, 2002, p. 65-66 onwards, where the term “legislation” is used in a broad sense: “[...] statutes
enacted by a democratically elected national assembly [...] other kinds of rule [...] delegated legislation and
European Community law”.
12
5
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
represents a real menace for the so-called securité juridique14, which consists of clarity,
accessibility and predictability of rules.
Nowadays, maintenance of rules aims to achieve one further objective by contributing to
make law “capable of leading to efficacy of regulation”15: in other words, today maintenance
looks at and focuses on the effects of rules even because legislation is an indispensable means
to carry out public policies which require implementation and evaluation16.
In this regard, over the last twenty years, there has been a pressure at international as well as
European level to increase the quality of regulation17. The OECD has stated that “better
regulation means to adopt regulations that meet concrete quality standards, avoids
unnecessary regulatory burdens and effectively meets clear objectives”18. The European
Union adopted firstly the concept of “smart regulation”19 (which means a regulation “[...]
about the whole policy cycle – from the design of a piece of legislation to implementation,
Conseil d’Etat, Rapport public 2006 – Sécurité juridique et complexité du droit, La documentation française,
2006. On this point, see A.J. Kerhuel, A. Raynouard, Mesurer Le Droit A L’aune De La Sécurité Juridique
[Measuring the Law: Legal Certainty as a Watermark] Georgetown Law and Economics Research Paper , No. 10,
2010
15 H. Xantachi, Quality of legislation: an achievable universal concept or an utopia pursuit?, in L. Mader, M.
Tavares de Almeida (eds.), Quality of Legislation. Principles and Instruments, Nomos, 2011, p. 81
16 On this point, see M. Howlett, M. Ramesh, Studying Public Policy: Policy cycle and policy subsystems, Oxford,
Oxford University Press, 1995.
17 On this topic, a first analysis has been developed in M. De Benedetto, M. Martelli, N. Rangone, La qualità delle
regole, Bologna, Il Mulino, 2011, and later in M. De Benedetto, “Good regulation”: Organizational and Procedural
Tools, in “Italian Journal of Public Law”, 2/2013, p. 235.
18 OECD, Overcoming Barriers to Administrative Simplification Strategies: Guidance for Policy Makers, 2009, p. 44.
OECD, Reccomendation on Improving the Quality of Government Regulation, Paris, 9 March 1995 and The OECD
Report on Regulatory Reform; Synthesis, Paris, 1997, p. 8.
19 European Commission, Communication “Smart Regulation in the European Union”, COM/2010/0543 final, p. 3:
a regulation which “must remain a shared responsibility of the European institutions and of the member States”,
a regulation in which “the views of those most affected by regulation have a key role to play”. About “smart
regulation” see N. Gunningham, P. Grabosky, Smart regulation. Designing environmental policy. New York, 1998,
Oxford University Press, and more recently N. Gunningham, D. Sinclair, Designing smart regulation,
http://www.oecd.org/dataoecd/18/39/33947759.pdf , 2008. See also R. Baldwin, J. Black, Really responsive
regulation, in “The Modern Law Review”, 71, 2008, p. 59 and R. Baldwin, Is better regulation smarter regulation?,
in “Public Law”, 2005, p. 485.
14
6
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
enforcement, evaluation and revision”), and later the idea of “fit for purpose” regulation 20
(because of “the current economic situation demands the EU legislation be even more
effective and efficient in achieving its public policy objectives […] REFIT will identify burdens,
inconsistencies, gaps and ineffective measures”).
The question could be synthetically described in terms of a “good” regulatory regime21,
strictly connected to enforcement (and compliance) of rules22. In other words, the question is
that regulation “seeks to change behaviour in order to produce desired outcomes”23.
This lead to the consequence that the quality of legislation should be considered as a problem
of making legislation clear and accessible but also of making it as “easy to comply with as
possible”24. We could say that there is a “symbiotic relationship between the formulation of
regulatory rules and their application”25.
The object of maintenance activities is, as already mentioned, the single, individual rule. It is
clear, however, that “regulation can refer either to individual rules or collections of rules”26
See European Commission, Communication “EU Regulatory fitness”, COM(2012) 746 final, p.3, and European
Commission, Communication “Strenghtening the foundations of Smart regulation – improving evaluation”, p. 3.
21 Baldwin, Cave and Lodge, Understanding Regulation. Theory, Strategy and Practice, p. 38
22 OECD, Reducing the Risk of Policy Failure: Challanges for Regulatory Compliance, Paris, 2000. See also W.
Voermans, Motive-based enforcement, Working Paper Leiden University, March 23, 2013. On this point, see, K.
Hawkins and J.M. Thomas, Enforcing Regulation, Kluwer-Nijhoff Publishing, 1984, p. 7. See. Also, E. Bardach and
R.A. Kagan, Going by the Book: The Problem of Regulatory Unreasonableness, Transaction Publishers, 2010,
originally published in 1982 by Temple University Press, p. x.
23 C. Coglianese, Measuring Regulatory Performance cit., p. 9
24 European Commission, Communication “EU Regulatory fitness”, p. 9. See also OECD, Better Regulation in
Europe: Italy 2012 – Revised Edition, June 2013, OECD Publishing, p. 101 (Compliance, enforcement and appeals).
25 Ogus, Regulation. Legal Form and Economic Theory, p. 90. See also Hawkins and Thomas, Enforcing Regulation,
p. 173: “Enforcement activities are facilitated and constrained by the form, stringency and coverage of the law”.
26 C. Coglianese, Measuring Regulatory Performance. Evaluating the Impact of Regulation and Regulatory Policy
cit., p. 8
20
7
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
but the rule constitutes the minimum of regulation and the object of enforcement27, of
evaluation28 and ultimately of maintenance.
In this light, the legislative process (which traditionally focuses on the creation of Statutes or
other kinds of legislation) should adopt the larger and more comprehensive logic of
regulation: “a good law is simply a law that is capable of achieving the regulatory reform that
it was released to effectuate or support”29.
It could be useful, at this point, to make some examples.
Firstly, a recent constitutional reform in France stated in 2008 that the French Parliament has
been obliged to carry out public policy evaluation sessions, dedicating one week per month to
this kind of activity30. For this purpose, the Comité d'évaluation et de contrôle des politiques
publiques (CEC)31 was established inside the Assemblée Nationale: it works on the basis of an
annual program and could be supported by external experts and by the Cour des Comptes,
giving its advice on the études d’impact presented by the Government32. In the period between
See R. Baldwin, M. Cave and M. Lodge, Understanding Regulation cit., p. 230: “Not all kinds of rule can be
enforced with the same degree of success […] Different enforcement strategies may thus call for different kinds
of rule”. See also, R. Baldwin, Rules and Government, Oxford University Press, 1995.
28 C. Coglianese, Measuring Regulatory Performance cit., p. 9
29 H. Xantachi, Quality of legislation: an achievanle universal concept or an utopia pursuit? Cit., p. 81. See, also, S.
Weatherhill, The challenge of better regulation, in S. Weatherill (ed.), Better Regulation, 2007, Hart, Oxford and
Portland, Oregon, p. 19
30 The loi constitutionelle du 23 Juillet 2008, at its art. 24 established that “Le Parlement vote les lois, contrôle
l’action du Gouvernement et évalue les politiques publiques”. On the specific point of Impact Assessment see J.
Maia, Outline of the French Practice of Regulatory Impact Assessment (RIA) System Preliminary to the
Legislative Process, One Year After the Enactment of the New 2008 Constitutional Framework, in J.B. Auby, T.
Perroud (eds.), Regulatory Impact Assessment cit., p. 167.
31 The Règlement de l’Assemblée National was reformed in 2009 (art. 146-2/146-7). In the meantime, the Loi
Accoyer (Loi n. 2011-140, du 3 février 2011) was adopted “tendent à renforcer le moyens du Parlement en matèrie
de contrôle de l’action du Gouvernement et d’évaluation des politiques publiques”.
32 The reccomendations of the CEC are transmitted to the First Minister or to the Minister responsible. On this
point see, P. Avril, Le contrôle. Exemple du Comité d’évaluation et de contrôle de politiques publiques, in
www.juspoliticum.com: “D’abord, elle a lieu non dans l’hémicycle mais ici même, salle Lamartine, dont la
27
8
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
July 2010 and February 2012, 11 Reports were adopted and published 33. The presented
reports show an interesting gathering of evidence34 about specific issues and seem to express
a serious commitment about public policy implementation, with an effort to fix and describe
policy objectives, indicating specific recommendations: e.g. for the case of the Rapport sur les
autorités administratives indépendantes where - after a documented activity of collecting
information35 - 27 recommendations on specific aspects of rationalization, independence and
control are indicated.
In other words, the French Parliament – traditionally occupied with law-making – is now in
charge (more than in the past) of the task of public policy evaluation and evaluation of
legislation, performing a sort of law-maintenance activity.
A second example regards the already mentioned EU Regulatory Fitness programme which
established that, starting from 2014, “the Commission will not examine proposals in areas of
existing legislation until the regulatory mapping and appropriate subsequent evaluation work
has been conducted”36. Furthermore, in order to guarantee EU regulatory quality, REFIT
programme conclusively provides that “EU legislation and the national rules that implement it,
must be managed in a manner that ensure it continues to efficiently achieve its public policy
configuration est propice, comme l’a souligné le président Accoyer, à une discussion moins formelle”.
33 On this point see, Rapport d’information déposé en application de l’article 146-3 du Règlement sur le bilan
d’activité du Comité d’évaluation et de contrôle des politiques publiques de 2009 à 2012, where there are
indicated the presented Reports: Principe de précaution, Quartiers défavorisés, Autorités administratives
indépendantes, Aide médicale d’État, Dispositif en faveur des heures supplémentaires, Médecine scolaire, RGPP,
Performance des politiques sociales en Europe, Hébergement d’urgence, Aménagement du territoire en milieu
rural, Stratégie de Lisbonne.
34 The Report is often accompained by an “Annexe”
35 Rapport d’information fait au nom du Comité d’évaluation et de contrôle des politiques publiques sur les
autorités administrative indépendantes, 28 octobre 2010, n. 2925, tome I, p.24
36 European Commission, Communication “EU Regulatory fitness”, COM(2012) 746 final, p. 4
9
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
objectives”37. Even in this example such management of legislation evokes a maintenance
activity which should be performed by EU institutions and by member State Governments.
Many other examples could be made from specific national experiences in which ex-ante as
well as ex post evaluation of legislation have been provided in the EU38, in the UK or the
United States39, in Australia,
Canada or in The Netherlands40, in Eastern Europe41 or
elsewhere. In this regards, many comparative Reports have been prepared by national42 or
international43 organizations as well as by academics and researchers44.
In conclusion, maintenance, which was in the past and additional and incidental activity, aims
to become an essential part of “good” legislative process (as a consequence of “good”
Ibid., p. 11
On this point, see C.M. Radaelli, F. De Francesco, Regulatory Quality in Europe, Concepts, Measures, and Policy
Processes, Manchester, Manchester University Press, 2007. See also House of Lords, European Union Committee,
4th Report of Session 2009-10, Impact Assessment in the EU: room for improvement, 9 March 2010.
39 See C.M. Radaelli, O. Fritsch, L. Schrefler, A. Renda, Comparing the content of regulatory impact assessments in
the UK and the EU, in “Public Money and Management”, vol. 6, no. 33, 2013, p. 445. See, also A. Renda, Impact
Assessment in the EU. The state of the art and the art of the state, Centre for European Policy Studies, Brussels,
2006.
40 An interesting comparison is available in Australian Government, Productivity Commission Research Report,
Identifying and Evaluating Regulation Reforms, Appendix K, How do different countries manage regulation?,
December 2011.
41 See K. Staronova, Regulatory Impact Assessment: Formal Institutionalization and Practice, in “Journal of Public
Policy”, 2010, Vol. 30, No. 1, p. 117.
42 See Australian Government, Productivity Commission Research Report, Identifying and Evaluating Regulation
Reforms cit.
43 See S. Jacobzone, C. Choi, C. Miguet, Indicators of Regulatory Management Systems, OECD Working Papers on
Public Governance, 2007/4, OECD Publishing.
44 See C.M. Radaelli, The diffusion of Regulatory Impact Analysis in OECD countries: best practices or lessondrawing?, in “European Journal of Political Research, 2004, p. 725. See, also, C. M. Radaelli, A. C. M. Meuwese,
Better Regulation in Europe: between public management and regulatory reform, in Public Administration, 2009,
Vol. 87, n. 3, p. 639. See, recently, E. Donelan, Progress and Challanges in Selected OECD and EU Countries in
Developing and Using regulatory Impact Assessement (RIA), in J.B. Auby, T. Perroud, Regulatory Impact
Assessment cit., p. 125.
37
38
10
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
regulation)45 achieving formal relevance and requiring a specific time in order to be
performed.
3. Historical roots of maintenance
In the 1980s, Bardach and Kagan made their famously strong and critical analysis of
regulatory rulemaking: in few words they gave voice – from the specific U.S. context - to the
very common “experience of being subjected to inefficient regulatory requirements” or to “the
evils of regulation”46.
Regulators have made progress during the last thirty years though not sufficiently, and not
with the same success everywhere47. Even though there is currently an institutional effort in
evaluating and identifying “unintended and unexpected consequences” of regulation48,
modern regulation does not always seem conducive, for the moment, to effective maintenance
of rules.
Nonetheless, it could be useful to look further back in the past to strict maintenance.
On this point, see L. Mader, From the struggle for law to the nurture of law-making – recent efforts by the
Swiss Confederation to improve the quality of legislation, in “Legislaçao”, 50, 2009, p. 296: “as an important –
and scarce – political source, legislation needs care and attention, as well as an ongoing effert to maintain and
improve its quality”.
46 E. Bardach, R.A. Kagan, Going by the book: the problem of regulatory unreasonableness cit., p. 7.
47 See, on the specific point of impact assessment, C.M. Radaelli, Diffusion without Convergence: How Political
Context Shapes the adoption of Regulatory Impact Assessment, in “Journal of European Public Policy”, 12, 5,
2005, p. 924
48 European Commission, Communication “Strenghtening the foundations of Smart regulation – improving
evaluation”, COM(2013) 686 final, p. 3. See also, K. Hawkins, J.M. Thomas, Enforcing Regulation cit., p. 3.
45
11
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
As already mentioned, over the centuries, the reasons which prompted the activities of
maintenance have very often been a response to the need to assure concrete accessibility to
rules, both as a possibility to avail of them and as a possibility to understand them.
When looking to Roman law, for example, we can find a real opposition to codification, even if
Roman law was defined as a “long journey” towards codification. Starting with the Twelve
Tables, codification was not proposed again until the end of Roman history, with the adoption
of the Theodosian Code and more importantly of Justinian’s Code49.
The greatest problem in Roman legal system was precisely the excessive number of statutes,
from which was born the need to bring together legislation50. Already at this time, the idea of
the irreducibility of law to codification had been held: this idea has come down to us through
the centuries. In fact, it has been affirmed that codification is a simulation of a definitive
statement and of a completeness which in reality it does not hold, and that codification makes
for rigid legal systems51.
In Italian Middle Ages communes there were statutarii (or correctores or emendatores) who
were charged (sometimes in institutionalized roles) with the task of updating, reviewing,
correcting and making coherent legislation52. Since then, maintenance has been considered a
“delicate activity”, necessary in order to oppose the enormous growth of statutes.
On this topic (leges collections in Roman Law) see F. Schulz, Principles of Roman Law, The Clarendon Press,
1936, p. 9. See also, E. Donelan, European approaches to improving access to and managing the stock of legislation
cit., p. 167, and E. Steiner, Codification in England: the need to move from an ideological to a functional approach-a
bridge too far?, in “Statute Law Review”, 2004, p. 218.
50 Tacitus (Annales, 3, 25) talked about a “moltitudo infinita ac varietas legum”.
51 See F. Schulz, Principles of Roman Law cit., p. 13.
52 On this issue, see F. Calasso, Medioevo del diritto – I. Le fonti, Milano, Giuffrè, 1954, p. 424. See also L. Armstrong,
J. Kirshner, The Politics of Law in Late Medieval and Renaissance Italy, University of Toronto Press Incorporated,
2011, p. 79
49
12
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
Furthermore, these Commissions (statutarii and so on) have followed a surprising method,
which has considered the question of how to regulate the relationship with “interest groups”
(as we call them today). In some cases, in fact, compilation and reform developed in a sort of
“conclave” until the work had been finished, without any possibility to communicate with the
external world. In other cases, statutarii were compelled to engage in real, though
rudimentary, consultation processes.
For a long time, maintenance of rules has been considered as a less noble activity than lawmaking, and as one in the service of law making itself. This was the consequence of a “lawcentred” approach, a real legolatria53, an inheritance of the Enlightment tradition54. In civil
law legal systems the issue of maintenance has for a long time suffered from a sort of
theoretical rejection caused by the increased adoption – during the 19th Century – of a
codification “ideology”.
The modern idea of code was affirmed by the Napoleonic codifications, which aimed at
completeness, systematization and duration of law55. As a consequence, it reduced the
legitimacy and the concrete feasibility of maintenance, in favour of statute interpretation. On
The expression “legolatria” has been used by P. Grossi, L’Europa del diritto, Roma-Bari, Laterza, 2007, p. 134;
see also P. Grossi, A History of European Law, Blackwell Publishing, 2010.
54 Conseil d’Etat, Rapport public, La sécurité juridique et la complexité du droit, La Documentation française, 2006,
p. 259, reference to « la croyance solon la quelle la loi vien à bout des difficultés, qu’elle est une solution, une
garantie ou, en quelque sorte, une thérapeutique”.
55 On this issue, see E. Steiner, Codification in England: the need to move from an ideological to a functional
approach-a bridge too far? cit., p. 209. In 1814 there was a discussion between two different positions regarding
the “necessity of a codification”: the discussion has been described in v. A.F.J. Thibaut e F.C. Savigny, La polemica
sulla codificazione, ed. G. Marini, Esi, Napoli, 1992. See also G. Braibant, Codification, in Encyclopaedia universalis,
1993, p. 39: “Les termes ‘code’, ‘codifier’, ‘codification’ sont des pavillons qui couvrent des marchandises
diverses et parfois frelatées”. See finally E. Donelan, European approaches to improving access to and managing
the stock of legislation cit., p. 167.
53
13
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
the other hand, even in this context, some codifications could be (in reality) consolidation and
so could substantially represent maintenance.
In the legal systems of English speaking countries, instead, an esprit de non codification56 has
been affirmed whereas law revision tools were introduced early on, in order to respond to the
need of the maintenance of rules.
In the civil law legal systems, alongside the activity of law-making, the activity of maintenance
of rules has become progressively more relevant, despite a process called “decodification” 57,
in particular since the 1980s, and despite the opinion that considered the code to be a “forme
depassée de législation”58.
Instead, the code has gained a renewed vitality, even if with fewer ambitions of completeness,
specifically in order to achieve strict maintenance objectives and formal quality of rules:
“today the aim of the codes is to make the law more accessible and coherent”59. Sectorial
codes have frequently been adopted in public law issues, in order to maintain law in specific
and limited fields of regulation, which are characterized by copious regulation.
Even today, a number of maintenance interventions may be considered as responses to the
need for concrete accessibility to rules60: strict maintenance still remains valid. In this way,
for example, we might consider all the activities which aim to allow availability and usage
G. Samuel, L’esprit de non-codification: le common law face au code Napoléon, in « Droits », 2005, p. 123.
The concept of “decodification-era” has been developed by N. Irti, L’età della decodificazione, Milano, Giuffrè,
1979. On this point, M.L. Murillo, The evolution of codification in the civil law legal systems: towards
decodification and recodification, in “Journal of Transnational Law and Policy”, 11, 2001, p. 1.
58 R. Sacco, Codificare: modo superato di legiferare?, in <<Rivista di diritto civile>>, I, 1983, p. 117.
59 E. Donelan, European approaches to improving access to and managing the stock of legislation cit., p. 147.
60 Conseil d’Etat, Rapport public, La sécurité juridique et la complexité du droit, 2006, p. 328, which mentions the
idea of “perfectionner la codification et adapter les outils informatiques en vue d’une meilleure accessibilité” and
which mentions Legifrance, “service public de la diffusion du droit”.
56
57
14
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
even through digital formats, specifically data-banks of up-to-date legislation (e.g., the U.S.
Code, which collects the Federal legislation61).
4. How maintenance is changing
The question of maintenance has regained centre stage due mostly to pressure from supranational and
international organizations, in particular the OECD which has proposed a number of tools to achieve wider
maintenance: among them, impact assessment, consultations, ex-post evaluation, and so on62.
For this reason, the concept of maintenance itself has been renewed today: it is no longer a remedy for a
pathology (such as difficulty in accessing rules or the need for correcting and revising them), it has become a
real institutional function, an essential part in the legislative process. The objectives of maintenance are now
more defined and more structured. They respond not only to the generic requirement of accessibility,
correction (or bringing up to date) and simplification of rules, but they aim to ensure the continuous
adequacy of rules through evidence-based decision-making and evaluation.
Maintenance has become functionally autonomous in the sense that it is no longer in the service of lawmaking and expects its own rules, specific experts and dedicated offices.
The U.S. Code has been prepared by the Office of the Law Revision Counsel (House of Representatives) since 1926,
as established by title 2, 285b. The U.S. Code collects “general and permanent laws of the United States”, while
executive regulations are collected by the Code of federal regulations. It could be useful to remember also
Legifrance « service public de la diffusion du droit par l’internet, est placé sous la responsabilité éditoriale du
Secrétariat général du gouvernement (SGG) ».
62 See C. M. Radaelli, How Context Matters: Regulatory Quality in the European Union, 2008, Paper presented for
PSA Conference, Lincoln, p. 4: “ (a) Impact assessment (RIA) (b) Consultation, typically although not exclusively
in the context of RIA (c) Simplification, often supported by impact assessment of the process to be simplified and
of alternative options for simplification (d) Access to legislation and regulatory transparency (e) Ex-post
evaluation of regulatory tools and institutions (for example, evaluation of how RIA units are performing)”.
61
15
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
4.1. Reasons for change
As we have seen, the enforcement of a rule is necessary in order to allow the rule to achieve its objectives.
This is permitted both by the formal quality of the rule (the rule is formulated in a coherent, simple and clear
way) and by substantial quality (the rule is formulated through ex ante analysis and ex post evaluation,
according to the principles of good regulation63).
However, the more and more rapid obsolescence of rules contributes to the increased relevance of
maintenance.
In fact, the frequent abrogation or updating of anachronistic rules could be necessary over time because it is
impossible to preserve any static equilibrium for long64. Furthermore, rules might contain defects produced
during the law-making process: this could impose their regularization, integration, correction or even reform.
There is, indeed, the insidious “creative compliance”, where the scope of a rule is circumvented and its spirit
breached to achieve desired results, without breaking the formal terms of the rule65. Finally, the speed of
technological innovation has increased, with the parodoxical effect of legislation always playing “catch up”,
but without success.
Obsolescence of rules, defects, creative compliance and technical innovations require adequate responses.
If we take a look in depth, one of the most pressing need for maintenance is epistemological in nature: the
limits of reasoning and of knowledge and the question of unintentional consequences of human behaviour
The OECD (Report on Regulatory Reform, 1997) established principles of good regulation The UK Legislative
and Regulatory Reform Act, art. 21, established in 2006 principles of good regulation, based on the Better
Regulation Commission's Principles of Good Regulation. These principles inform a Code of Practice issued by the
Minister, “to which regulators must have regard when determining any policy or principles by reference to
which they exercise specified regulatory functions”. Art. 21 (2) states that “regulatory activities should be carried
out in a way which is transparent, accountable, proportionate and consistent and also
that regulatory activities should be targeted only at cases in which action is needed”.
64 The issue is analysed in G. O’Driscoll, M.J. Rizzo, The economics of time and ignorance, 1996, Routledge, London,
New York.
65 On creative compliance see R. Baldwin, Rules and Government cit., p. 185 and R. Baldwin, M. Cave, M. Lodge,
Understanding Regulation. Theory, Strategy and Practice cit., p. 232
63
16
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
affect even legislation 66 . It follows that the consequences of behaviour depend (in part) on what other
individuals might choose67. The perspective which should be adopted by regulators, must be fallibilist68 (or
anti-perfectist69).
When we adopt a regulation, we have to ensure its effectiveness70 and monitor the life-cycle of its individual
rules. Legislation should be followed just as we would follow the course of a sickness after a medicine has
been administered.
4.2 Maintenance and quality of rules
Quality of regulation, as we have seen, is not a new problem, neither in the formal quality of rules (related to
their coherence, clarity and understandability) nor in their substantial quality (related to the effects of the
rules).
Formal quality is the objective of the modern legislative technique, aiming to ensure coherence, clarity and
understandability of rules: drafting in English speaking countries71, legistique formelle in France72, tecnica
J. Rawls, A Theory of Justice, The Belknap Press of Harvard University Press, Cambridge, Mass., 1971 (italian
translation, p. 299). The issue has also been developed by F.A. Von Hayek, The counter-revolution of science.
Studies on the abuse of reason, 1952, The Free Press, London.
67 G. O’Driscoll, e M.J. Rizzo, The economics of time and ignorance cit., in particular see Introduction. Parallels
(connections) between epistemology and history are analysed from a legal point of view, by C. Menger,
Investigation into the method of the social sciences with special reference to economics, New York University Press,
New York – London, 1985, p. 43, where, quoting Savigny, he wrote: “the subject matter of law […] is given
through the collective past of the nations”.
68 K.R. Popper, The open society and its enemies, vol. II, Routledge & Kegan Paul, 1945, addendum: “Every
discovery of a mistake constitutes a real advance in our knowledge”.
69 Antiperfectism is a theory devoted to A. Rosmini, Filosofia della politica, (1837), Milano, Rusconi, 1985, p. 137:
“Il perfettismo, cioè quel sistema che crede possibile il perfetto nelle cose umane, e che sacrifica i beni presenti
alla immaginata futura perfezione, è un effetto dell’ignoranza”. See also R. Dahrendorf, Economic Opportunity,
Civil Society, and Political Liberty, in “Development and Change”, 1995, 25, 2, p. 229 (p. 58).
70 On this point see F. Jullien, Traité de l’efficacité, Édition Grosset & Fasquelle, Paris, 1996
71 See G.C. Thornton, Legislative drafting, 3 edn., London, 1987. See also W. Dale, Legislative Drafting : a New
Approach, a Comparative Study of Methods in France, Germany, Sweden and the United Kingdom, London, 1977
and R. Pagano, Le Direttive di tecnica legislativa in Europa, Roma, 1997.
72 J. Chevallier, L’évaluation législative: un enjeu politique, in Contrôle parlementaire et évaluation, A. Delcamp,
J.L. Bergel, A. Dupas, Paris, 1995, p. 15 : "La légistique est une ‘science’ (science appliquée) de la législation, qui
cherche à déterminer les meilleures modalités d'élaboration, de rédaction, d'édiction et d'application des
66
17
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
legislativa in Italy (which has been defined as “craftsmanship”)73 and in Spain. Formal quality has become
the object of specific provisions all over the world.
For example, many provisions have been set out by legislative assemblies74, by governments75 and by the
different Conseilles d’Etat76.
At subnational level, formal quality has been considered both by federal systems and regional ones 77 .
Guidelines, checklists and handbooks on drafting have been produced at metanational level – as in the case
normes". See also (for Belgium) Conseil d’Etat, Legistique formelle. Recommandations et formules, November
2001.
73 See the special edition of “Il Foro Italiano”, 1985, V, p. 20 onwards, entitled “La tecnica legislativa: un
artigianato da valorizzare”.
74 As in the case of the U.S. and Italy. See (for the U.S.) The Office of the Legislative counsel - U.S. House of
representatives, House Legislative counsel’s manual of drafting style, U.S. Government printing office, Washington,
1995, in particular regarding drafting principles, p. 1 onwards. For Italy, see Circolari del presidente del Senato e
del presidente della Camera dei deputati, 2001
75 As in the case of Germany, Italy and Spain. In Germany there is a common regulation for federal ministries
(adopted in 1976 and later modified). In Italy, there is the Circolare della Presidenza del Consiglio dei ministri, n.
1088/2001, “Guida alla redazione degli atti normativi” and more recently the Direttiva del Presidente del
Consiglio dei ministri, 2009, “Istruttoria degli atti normativi del governo”. Spain saw the adoption, in 1991, of
Directrices sobre la forma y estructura de los Anteproyectos de Ley and, in 2005, of Directrices de técnica
normativa.
76 As in the case of Belgium, France and Italy. In 2008 the Belgian Conseil d’Etat produced a Guide de rédaction
des textes législatifs et réglementaires (Principes de technique législative). In Italy, the Consiglio di Stato, Sezione
consultiva per gli atti normativi, n. 2024/2007, “Presidenza del consiglio dei ministri – Piano di azione per la
semplificazione e la qualità della regolazione”, has affirmed that “le ‘buone regole’ sono quelle che garantiscano
un livello qualitativo elevato del rapporto Autorità-cittadini e Autorità-imprese, mediante scrittura formale e
contenuti certi, chiari, razionali, coerenti”. In 2005 the French Conseil d’Etat produced (with the Secrétariat
général du Gouvernement) a “Guide pour l'élaboration des textes législatifs et réglementaires” (a more recent
version was adopted in 2007).
77 As in the German Länder, R. Pagano, Introduzione alla legistica. L’arte di preparare le leggi, 2004, Milano,
Giuffrè, p. 48. In Italy too, the Regions refer to a single drafting manual, prepared by the Osservatorio legislativo
interregionale (OLI) at the request of the Conference of Regional Assembly Presidents (2nd ed., 2002).
18
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
of the European Union 78 – and at international level, as in the case of OECD 79 and other international
organizations80.
Alongside drafting, the science of legislation, starting from the work of Filangieri81, aims to redesign the way
in which to achieve “good” legislation, from the point of view of its content. The science of legislation has
gained a certain theoretical importance especially in German speaking countries, with the
Gesetzgebungslehre82. The problem of “good” legislation is also object of the legisprudence, a normative
theory of rational legislation, which will take into account both the form of legislation and its content83.
There is large agreement about the opinion that quality of rules is nowadays a “comprehensive” question
which implies formal quality and substantial quality aspects.
Law takes hold in the field of law-making and law-maintenance84 because it regulates the genesis and the
effects of regulation.
Many legal provisions establish, in some way, that rules must be efficient85, and that their application is to be
measured and evaluated: efficiency becomes subject to quality rules in the regulatory process, because “the
At European level, see, first of all, the Resolution of the European Council “on the quality of drafting of
Community legislation” (1993). Regarding the Commission, see the “General guidelines for legislative policy”
SEC(1995) 2255/7 (1996). Finally see the Interinstitutional Agreement (22 December 1998) “on common
guidelines for the quality of drafting of Community legislation” and the Joint Practical Guide of the European
Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community
institutions (2003). In 1998, on this issue an Interinstitutional Group on the quality of drafting was established.
79 See n. 8 of the OECD check list (1995)
80 This is the case for the International Labour office (ILO), Manual for drafting ILO instruments, 2006, where
“formal structure of the instrument” (p. 1) and “substantive content of the instrument” (p. 31) are distinguished.
81 G. Filangeri, La scienza della legislazione [1780-1785] - Constant B., Comento sulla scienza della legislazione, I e
II, a cura di V. Frosini, revisione critica dei testi di F. Riccobono, Roma, IPZS, 1984.
82 The most important contribution on this topic is devoted to P. Nöll, Gesetzgebungslehre, Rowholt, 1973
83 “It concerns both the content of legislation and its form”, L. Mader, Evaluating the effects: a contribution to the
quality of legislation, in «Statute law review», 2001, p. 119. See also L.C. Wintgens, Freedom and legisprudence – a
more substantial view: a reply to professor Perju, in <<Boston University Law Review>>, 2009, p. 1795.
84 S. Cassese, Introduzione allo studio della normazione, in “Rivista Trimestrale di diritto Pubblico”, 1992, p. 309,
affirmed: “la progettazione della legge è estranea all’essenza del diritto”.
85 On this issue, see F. Denozza, Norme efficienti. L’analisi economica delle regole giuridiche, Milano, Giuffrè 2002.
78
19
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
process of law-making is, as a rule, regulated by law” 86 . There is, in other words, an “evaluate first”
principle 87 . This situation brings about an increasing relevance of experts 88 in the law-making and lawmaintaining processes, as well as an increasing pressure on political decision-makers to justify rules89.
4.3 Kinds of maintenance (compilation, consolidation, revision, reform)
In the different systems of law-making there are various uses of terms like codification, consolidation,
revision, reform, etc. There is the risk that the same word could refer to different activities in different legal
systems.
This difficulty is due to possible (and often frequent) contamination of different degrees of maintenance
inside a single maintenance intervention. It is possible, for example, that a compilation activity is the
occasion for consolidation; in a reform there would also be rules which are subject to revision alone90.
J. Wroblewski, The rational law-maker. General theory and socialist experience, in L’educazione giuridica, V –
Modelli di legislatore e scienza della legislazione, tomo III – la discussione contemporanea, a cura di A. Giuliani e N.
Picardi, Università di Perugia,1987, p. 60.
87 European Commission, Communication “EU Regulatory fitness” cit., p. 7. See also C. Coglianese, Measuring
Regulatory Performance. Evaluating the Impact of Regulation and Regulatory Policy cit.
88 See U. Karpen, Law Drafting and the legislative Process: Outline of a Training Course for Law Drafters, in L.
Mader, C. Moll, (eds.) The Learning Legislator: Proceedings of the 7 th Congress of the Association of Legislation
(Eal), 2006. The Hague, Baden-Baden, Nomos
89 See J.O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government, 1978,
London-New York, Cambridge University Press; M. Shapiro, The Giving reason requirement, in “The University
of Chicago Legal Forum”, 1992, p. 179. Comments on this point in L. Blake, J. Pointing and T. Sinnamon, Overregulation and suing the State for negligent legislation, in «Statute law Review», 2007, p. 218; in particular, see p.
219, which affirms that “legislative negligence includes failing to revoke or to amend out of date legislation”.
90 A compilation activity could be the opportunity for a revision, as a reform could consist of a consolidation of
existing norms. For example, the U.S. Code refers to activities which are defined as “consolidation and revision”
and which consist of compilation and revision, sometimes consolidation; the French codification is often
consolidation and revision, sometimes a real reform; in the U.K. revision means abrogation of norms, as
described by E. Donelan, European approches to improving access to and managing the stock of legislation, cit., p.
167. In Australia, the Legislation revision and publication Act (2002), promoted “an ongoing program for the
revision and publication of legislation”, with the aim “to consolidate public general legislation and make up-todate copies of the public general legislation”. In Italy, there is a distinction between “riordino” and “riassetto” of
norms: the first, has a conservative character, the second has the objective of a substantial revision of legislation.
86
20
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
Difficult as it may be to recognize the kinds of maintenance of rules, it is nonetheless possible to distinguish
the interventions which have quantitative effects on the stock of legislation from the interventions which are
limited to ordering regulation.
The first kind regards activities of “removing legislation”, carried out in some English speaking countries
with the Statute Law Revision Act, a normative act with a typical content, in some way echoed by the Italian
taglia-leggi (a sort of legislative guillottine)91.
Regarding the second kind of maintenance, we can proceed towards a graduation based on the pursued
objectives. If the pursued objective is accessibility of rules, there will be interventions of compilation or
consolidation. If it deals with their correction or updating, there will be a revision. If it is the innovation (or
simplification) of regulation, there will be a real reform (or codification).
The objective of accessibility to regulation 92 could require compilation 93 , which is the first type of
maintenance: in compilation, normative texts are gathered into a single collection, which retains their
separate identities. The Roman leges collection were inspired by the logic of compilation, as we have seen,
in the same way as the United States Code, which collects Federal Legislation.
Through consolidation, instead, scattered rules are gathered together into a single, up-to-date, normative
text. Consolidation constitutes a very important category, because it stands in contrast with modern
codification, from theoretical and historical perspectives, and because the two are very often confused94.
On this issue, see N. Lupo, e B.G. Mattarella, Gli sviluppi del “taglia-leggi”: per ora molta immagine e poca
sostanza, in <<Studi parlamentari e di politica costituzionale>>, 2008, n. 161-162, p. 7.
92 E. Donelan, European approches to improving access to and managing the stock of legislation, cit., p. 149. The
French Conseil d’Etat in the “Guide pour l'élaboration des textes législatifs et réglementaires” (2007) affirmed:
“Essentiellement fondée sur une consolidation et une meilleure organisation des normes existantes, la
codification tend à faciliter la connaissance et la communication des règles de droit”.
93 E. Steiner, Codification in England: the need to move from an ideological to a functional approach-a bridge too
far? cit., p. 219: “Compilations, designed to bring together into one statute existing laws, either in chronological
order or by subject, but without altering their form”.
94 On this issue the historical contribution of M.E. Viora was very important: Consolidazioni e codificazioni.
Contributo alla storia della codificazione, Torino, Giappichelli, 1967.
91
21
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
In France, for example, codification – which operates à droit constant – is a consolidation95. Even in Italy,
codification is today substantially a consolidation: here the “single text” (testo unico), which represents the
typical administrative form, has been affirmed. Furthermore, consolidation is also used in the UK system and
in the legal systems of other English-speaking countries.
If maintenance responds to the need for correcting or updating rules, then it is necessary to resort to
revision96, in order to eliminate “defects or anachronisms”, such as in the many commissions which operate
in the U.S. (e.g., the State of New York Law Revision Commission97).
In the UK, revision has to be considered in the broader category of law reform: revision is the technique
which imposes the abrogation of useless (sometimes obsolete) rules, the fusion of similar rules, the
elimination of anomalies. This process is the specific degree of maintenance which better corresponds to the
The Commission supérieure de codification, established by the Décret n. 89-647 (1989) was in charge of the
task to schedule the codification activities and to adopt and transmit the draft codes to the Government. On this
point, see G. Braibant e A. Zaradny, L’action de la Commission superiéure de codification, in «AJDA», 2004, p. 1856,
who have written that “la codification actuelle apparaît comme un besoin d’une société démocratique au bord de
l’asphyxie normative”. See also OECD, Rapport sur la qualité de la réglementation en France – La capacité du
gouvernment a produire des réglementations de grande qualité, 2004, p. 6 : “Par nature, le système juridique
français de droit romain écrit, qui ne connaît pas de date limite pour la validité des textes, conduit à un
empilement historique des textes. Le mouvement de codification et de simplification administrative apparaît
alors comme le pendant nécessaire qui accompagne d’une certaine façon la complexité croissante. Jusqu’à
présent la codification permet de rationaliser en partie l’empilage des textes existant mais elle n’en réduit pas la
complexité car elle s’est effectuée à droit constant, c’est-à-dire sans changement dans la substance de la loi ou de
la réglementation ».
96 E. Steiner, Codification in England: the need to move from an ideological to a functional approach-a bridge too
far?, cit., p. 219, used the word restatement in this regard: “this type of codification does not necessitate
reconsideration of the relevant law with a view to reform, although it may include minor improvements such as
the repeal of obsolete texts or the elimination of inconsistencies”. The concept of “revision” was described by
Alfred Clapp in the foreword to Title 2A of New Jersey Statutes, as reported in the Annual Report of the New Jersey
Law Revision Commission (1989), p. 16: “The task of making a revision is primarily to rewrite where language can
be improved upon materially without ripping up the fabric of the law satisfactorily settled, to boil down, to
clarify, to eliminate the obsolete, to reconcile the inconsistent, to correct clear errors”.
97 The State of New York Law Revision Commission was established by the Legislative law, art. 4-A, implemented
with the charter 597 of the Laws in 1934. LRC has such important tasks as studying and proposing new
legislation, revision of current legislation, drafting in legislative process. In California there is the California Law
Revision Commission (1953), in Michigan the Law Revision Commission (1965), in New Jersey the Law Revision
Commission (1985), in Oregon the Law Commission (1997).
95
22
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
logic of quantitative interventions on the stock of legislation (Statute Law Revision Act or the Italian taglialeggi).
Finally, if there is a real need for “much more substantial changes”98 in regulation – in other words to codify
(and simplify) rules – it is possible to implement a reform (intervention which would take the form of
codification, also known as riassetto in Italy) which implies a wide maintenance activity based on regulatory
evaluation.
The relationship between the technical phase of the decision and the political choice in maintenance of rules
has a different relevance in the first three kinds of maintenance (compilation, consolidation and revision) as
well as in the fourth (reform). In the first three of them, formal quality dominates, as well as technical
evaluation and law-making expertise. In the fourth, policy evaluation, guided by the regulatory options, is
necessary in order to achieve substantial quality: a regulatory analyst (for the technical decision) and the
regulator itself (for the political decision) are necessary here99.
5. The modern legislator walks on two legs: law-making and
law-maintenance
At the end of this essay, it is clear that the modern legislator should walk on two legs: lawmaking, on one side, and law-maintenance, on the other100, in order to ensure formal and
substantial quality of legislation as well as the continuous adequacy of rules.
A. Samuels, Consolidation: a Plea, in <<Statute Law Review>>, 2005, p. 59. A codification-reform “means a
complete reconsideration of the law in a particular field with a view to its reform” (E. Steiner, Codification in
England: the need to move from an ideological to a functional approach-a brifge too far?, cit., p. 220).
99 M. De Benedetto, M. Martelli, N. Rangone, La qualità delle regole, cit., p. 111
100 This is the title of my speech at the Workshop on “Legislation and Legistic in European Countries” organized
by the International Association of Legislation, Berlin, 19-21 October 2012.
98
23
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
This comprehensive point of view is a direct consequence of a public policy approach to
legislation: if legislation is a tool for public policies and regulation, and if public policies and
regulation are processes, then it should be obligatory to produce good quality legislation as
well as evaluate legislation even after its adoption.
In this sense, maintenance of rules is not only a way to ensure accessibility, clarity and
coherence of legislation (where rules must have formal quality as a result of the application of
drafting techniques) but also the way for ensuring the continuous adequacy of rules in
achieving regulatory objectives expressing and demanding a logic of continuation 101 .
Legislation should be built to be maintained, thanks to an evidence-based decision-making102
and to economic analysis of regulation (such in the case for cost-benefit analysis) which could
bring greater rationality to public decisions103.
This is also possible through consultations, which may anticipate the criticisms or failures of
regulation, strengthening the legitimacy of regulation and reducing litigation104.
The function of maintenance, however, could redefine the horizon of political action and could
help politics to provide remedies for its more frequent mistakes105.
F. Jullien, Traité de l’efficacité, Paris, Grosset & Fasquelle, 1996.
See R. Baldwin, M. Cave, M. Lodge, Understanding Regulation. Theory, Strategy and Practice, cit., in particular
p. 25. On this point, C. Coglianese, Empirical Analysis and Administrative Law, in “University of Illinois Law
Review”, 2002, p. 1111.
103 On this point, R.W. Hahn, P.C. Tetlock, Has Economic Analysis Improved regulatory Decisions ?, in “Journal of
Economic Perspectives”, 22, 2008, p. 67
104 Communication Towards a reinforced culture of consultation and dialogue, COM(2002)704
105 K.R. Popper, The Poverty of Historicism, London-New York, 1957, Routledge & Kegan Paul, (Routledge Classics
2002), p. 81: “Scientific method in politics means that the great art of convincing ourselves that we have not
made any mistakes, of ignoring them, of hiding them, and of blaming others for them, is replaced by the greater
art of accepting the responsibility for them, of trying to learn from them, and of applying this knowledge so that
we may avoid them in the future”. See U. Karpen, Comparative Law: Perspectives of Legislation, in
“Legisprudence”, vol. 6, n. 2, 2012, p. 149.
101
102
24
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
This new, more complex and modern perspective for maintenance of rules goes against the
opinion that studying and planning rules is better (and easier) than verifying and
implementing them106.
Alongside a number of examples of strict maintenance in history, it is even more frequent to
find cases also in the field of wide maintenance, in order to achieve the continuous adequacy
of rules: we have already mentioned the French Constitutional reform (2008), the EU
regulatory fitness program (2010), but also the widespread recourse to ex-ante and ex-post
analysis of regulation all over the world.
Rather, it will be important that Governments adopt a legislation maintenance strategy which
should include both the stock of rules and the regulatory flow.
Legal systems are, more or less, like public gardens. In the same way as in a city garden
service, it is indispensable for Government to establish maintenance task forces of
“gardeners”, experts in the field of drafting as well as in regulatory analysis, in charge of
planned activities to support law-making and maintenance of rules. Sometimes, such
“gardeners” will intervene for daily activities (strict maintenance), sometimes they will
implement stronger interventions (wide maintenance).
In any case, it is becoming more and more clear that legislation founded only on the leg of
law-making seriously risks limping and, in limping, it risks failing in its role, such as a city
garden service which is responsible for a garden, well-designed and planted but completely
abandoned.
106
See B.G. Mattarella, La trappola delle leggi. Molte, oscure, complicate, Bologna, Il Mulino, 2011, p. 8
25
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
Bibliographical references
Auby, J.B., Perroud, T., (eds.), Regulatory Impact Assessment/La evaluación de impacto
regulatorio, Global Law Press/Inap, 2013
Baldwin, R., Rules and Government, Oxford University Press, 1995, p. 185
Baldwin, R., Cave, M., Lodge, M., Understanding Regulation. Theory, Strategies and practice,
Oxford University Press, 2012
Bardach, E., and Kagan, R.A., Going by the Book: The Problem of Regulatory Unreasonableness,
Transaction Publishers, 2010 (originally published in 1982 by Temple University Press).
Chevallier, J., L’évaluation législative: un enjeu politique, in Contrôle parlementaire et
évaluation, A. Delcamp, J.L. Bergel, A. Dupas, Paris, 1995
Coglianese, C., Evaluating the impact of regulation and regulatory policy, OECD Expert Paper
No. 1, August 2012
Coglianese, C., Kagan, R.A., (ed. by), Regulation and Regulatory Processes, Ashgate, 2007
De Benedetto, M., Martelli, M., Rangone, N., La qualità delle regole, Bologna, Il Mulino, 2011
Hawkins, K., and Thomas, J.M., Enforcing Regulation, Kluwer-Nijhoff Publishing, 1984.
Karpen, U., Comparative Law: Perspectives of Legislation, in “Legisprudence”, vol. 6, n. 2, 2012,
p. 149
Mader, L., Evaluating the effects: a contribution to the quality of legislation, in «Statute law
review», 2001, p. 119.
Mader, L., Tavares de Almeida, M., (eds.), Quality of Legislation. Principles and Instruments,
Nomos, 2011
26
CREI
Centro di Ricerca Interdipartimentale
di Economia delle Istituzioni
Ogus, A., Regulation. Legal Form and Economic Theory, Oxford-Portland Oregon, Hart
Publishing, 2004
Radaelli, C.M., Diffusion without Convergence: How Political Context Shapes the adoption of
Regulatory Impact Assessment, in “Journal of European Public Policy”, 12, 5, 2005, p. 924
Radaelli, C.M., Fritsch O., Evaluating Regulatory Management Tools and Programs, OECD
Expert Paper No. 2, July 2012
Samuels, A., Consolidation: a Plea, in <<Statute Law Review>>, 2005, p. 56
Voermans, W., Styles of Legislation and Their Effects, in “Statute law Review”, 2011, p. 38.
Voermans, W., Motive-based enforcement, Working Paper Leiden University, March 23, 2013.
Weatherhill, S., (ed.), Better Regulation, 2007, Hart, Oxford and Portland, Oregon
Xantachi, H., Quality of legislation: an achievable universal concept or an utopia pursuit?, in
Mader, L., Tavares de Almeida, M., (eds.), Quality of Legislation. Principles and Instruments,
Nomos, 2011, p. 75
27