Thoughts and Theories about Legislation
A historical and systematic overview
Law and legislation are connected like in a complex relationship: sometimes appealing and merging, sometimes repelling. Rules were considered to be necessary to get some public order and to set boundaries to peoples’ emotions. Legislation has also been an important instrument in the hands of ‘Power’. With binding rules a policy can be executed and the own position can be protected. One could notice this in earlier days, one can still notice it nowadays. Through the ages it is tried to restrict ‘Power’, relying on God,
relying on Nature, relying on ‘the People’ or urging a Just Government. The history of this struggle is a Read Thread in this study, exposed by discussing important thinkers from different countries. The question discussed here is whether or not this idea of Justice can be directly related to the concept of ‘legislation’, whether justice is or should be an inherent part of legislation,
or that legislation is just a neutral ‘form’, a vehicle for ‘Power’ implying that ‘Justice’ should be gained by political means - legislation at the crossing between politics and law.
For its credibility it is necessary that legislation is working effectively, that statutory rules function and that the intended goals are reached to a certain level. Empirically seen, there is some evidence that statutes do work to a certain extent, but some thinkers are sceptical about that. Several theories exist which explain that it is very difficult for Government to direct human
behaviour, but theories about the working of statutes hardly exist. They will get a place here.
People, including philosophers of law, love rules and they hate rules. This ambivalence is another Read Thread in the history of theories of legislation. Economic theories of law and the scepticism in the tradition of Common Law received their attention. It is also discussed in a psychological sense, related to the two-sided function of rules: protecting and restricting, and it is inherent to the development of people, from childhood to adulthood.