Legal Emulation between Regulatory Competition and Comparative Law

Abstract

This paper puts forward an alternative path, next to regulatory competition models and comparative law endeavors, called legal emulation. Regulatory competition suffers from its very restrictive assumptions, which make it a relatively rare occurrence in practice. It is also endogenously driven, ignoring legal change brought about from within the law, and it takes an impoverished view of law. As for comparative law, it has tended to remain mostly mono-disciplinary. It usually lacks a dynamic dimension. Legal emulation tries to combine the more dynamic perspective of regulatory competition, with the endogeneity of comparative law. It rests on a theoretical perspective whereby the law is conceived as the outcome of a series of choices – substantive or institutional, fundamental or transient – made between different options (legal science would then be the investigation of the set of those choices). The paper provides an outline of the legal emulation model. Legal emulation ties together and explains a number of existing phenomena in many legal orders, such as constitutional, EU or human rights review; impact assessment; peer review within networks of authorities; or the open method of coordination. Finally, the paper outlines some consequences of adopting a legal emulation model.

Keywords: Regulatory competition, comparative law, functionalist method, comparative law and economics, legal emulation

JEL Classification: K00, K10, L51