Legislation and Regulation
Draft for the Handbook of Legislation (eds. H. Xanthaki & U. Karpen), 2017 Forthcoming
17 Pages Posted: 8 Jul 2016
Date Written: July 1, 2016
In most civil law countries legislation is the single most important medium through which law is expressed. In order to understand the concept of legislation, and the different meanings and uses it has nowadays, one needs to understand the functions legislation performs in modern states. To do just that it is important to understand the difference between the concept of legislation and regulation. With ‘legislation’ we mean the authoritative, and constitutionally controlled form in which law is cast and the procedure leading up to the enactment of it (the decision). With regulation we mean a public intervention in a market or in society. Regulation is an instrument of governance (not governance itself). Legislation and regulation coincide in a lot of instances. A lot of regulation is cast in the form of legislation. By this regulation acquires the power of law, legitimacy and other effects. But not all regulation needs to be cast in the form of legislation (think of so-called policy rules), and not all legislation is regulation (e.g. legislation establishing an advisory body for the government). Legislation and regulation have become ever more important as means of governance and vehicles of rights, entitlements and legitimacy – we live our lives in regulatory states. The quality of legislation and regulation therefor is of the utmost importance. The chapter argues that is important to take due notice of the difference between legislation and regulation and the different functions the perform if one wants to put policies and instruments in place to improve the overall quality of legislation of regulation, as the case may be.
Keywords: legislation, regulation, quality of legislation, governance, constitution
JEL Classification: G18, K1
Suggested Citation: Suggested Citation