The Legisprudential and Political Functions of Temporary Legislation
29 Pages Posted: 11 Jun 2019
Date Written: May 26, 2019
This Article explores the functions or uses of temporary (or “sunset”) legislation – statutory provisions enacted for a limited time. It distinguishes between two main types of functions: legisprudential functions (using temporary legislation as regulatory tool to deal with situations in which the nature of the law, the policy or circumstances require the temporality of the norm); and political uses (using temporary legislation as a political tool for overcoming opposition to the bill). The article explores this issue both empirically and normatively.
Empirically, it employs a multi-method approach to investigate how the legisprudential and political functions of temporary legislation are used in practice by the Israeli Parliament (the Knesset). The empirical study reveals a rich array of legisprudential uses of temporary legislation in the legislative practice of the Knesset - a richer array than is often assumed in existing discussions. It also reveals the political uses of temporary legislation and the ways they operate in practice. It exposes a variety of examples of how temporary legislation is employed (particularly by the government) as a means of facilitating legislation, overcoming parliamentary and governmental objections to the bill, and evading effective parliamentary, public, media and judicial scrutiny. It also finds that government bills that contain sunset clauses enjoy a significantly higher passage rate than all government bills.
Against this backdrop, the article turns to a normative discussion about the appropriate uses of temporary legislation. It opines on which of the legisprudential functions are more appropriate, and which should be used more cautiously. It also argues, contrary to much of the current writing and to current practice, against the legitimacy and appropriateness of the political use of temporary legislation. It argues that temporary legislation should not be used merely as a tool to garner agreement and overcome opposition to the bill.
Keywords: temporary legislation, sunset legislation, sunset clause, experimental legislation, Knesset, parliament, legisprudence, legislation, law and politics, legislative process, lawmaking
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