Snoozing Democracy: Sunset Clauses, De-Juridification, and Emergencies

Abstract

In the last decades, we have witnessed two contradictory tendencies in lawmaking throughout the Western world: On the one hand, there is a tendency to 'juridify' almost every single aspect of society, ensuring that almost no detail is left unregulated. On the other, at times of economic or political crisis, a part of society is 'de-juridified', that is, law disappears strategically as multiple rules are temporarily put on hold, rights are suspended and courts are deactivated. This Article focuses on this ambivalence and on the role played by sunset clauses to operationalize both temporary juridification and de-juridification.

Sunset clauses have often been used in common law and, more recently, in civil law countries to 'juridify' and 'de-juridify' since these legislative provisions provide that a specific piece of legislation shall expire automatically on a specific date. These dispositions can be used not only, to enact exceptional and temporary emergency measures (e.g. temporary policies to provide financial assistance to firms) but also to remove procedural obstacles that stand in the way of rapid decisionmaking. Temporary de-juridification through sunset clauses might seem at first sight an effective method to tackle emergencies, guaranteeing that extraordinary powers do not become entrenched. However, this Article demonstrates that in the past rights and institutions have been too easily suspended at times of crisis and temporary measures have often been extended beyond the original critical periods. Not surprisingly, this has had pernicious effects on the principle of separation of powers and the protection of human rights.

Although the mentioned ambivalence of de-juridification at times of crisis has been perceived as a problem in multiple jurisdictions, not much attention has been devoted to it in the legal literature. This Article fills this gap by analyzing the nature and functions of temporary de-juridification through sunset clauses and explaining the risks of hasty de-juridification. This Article provides a historical and comparative account of the implementation of temporary de-juridification through sunset clauses. Based on these lessons, we suggest a normative framework to help rethink particularly the temporary de-juridification of human rights and address the negativity which is often associated with sunset clauses.

Keywords: sunset clauses, juridification, human rights, emergency legislation, terrorism, de-juridification

JEL Classification: K10, K19