Fuzzy Legality in Regulation: The Legislative Mandate Revisited

29 Pages Posted: 7 Nov 2006 Last revised: 1 Apr 2016

See all articles by Margit Cohn

Margit Cohn

Hebrew University of Jerusalem - Faculty of Law

Date Written: January 2, 2011

Abstract

How does law interact with regulatory reality, and why does legislative mandate, which presumably stands at the apex of regulatory package, often deviate from its ideal-type as exclusive organizer of action? These questions are treated in this article through the concept of "fuzzy legality", which serves as a common title for six different legal arrangements that stray from the ideal-type legislative mandate, while enabling "perfectly legal" industry behaviour. Against the background of potential dangers involved in such practices, the article traces the politics of preference for fuzziness both by regulators and regulatees. It reassesses calls for responsive and reflexive law, by suggesting that policy content, rather than overly formal enforcement and implementation strategies, may stand at the basis of the crisis of regulation.

Keywords: Regulation, Statute Law, Autopoietic theory, Legality, Fuzzy

JEL Classification: K20, K23, K29, L59

Suggested Citation

Cohn, Margit, Fuzzy Legality in Regulation: The Legislative Mandate Revisited (January 2, 2011). Law and Policy, Vol. 23, No. 4, pp. 469-487, October 2001. Available at SSRN: https://ssrn.com/abstract=942475

Margit Cohn (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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