Constitutional Sunsets and Experimental Legislation

Constitutional Sunsets and Experimental Legislation

a Comparative Perspective

Elgar Monographs in Constitutional and Administrative Law series

Sofia Ranchordás

This innovative book explores the nature and function of ‘sunset clauses’ and experimental legislation, or temporary legislation that expires after a determined period of time, allowing legislators to test out new rules and regulations within a set time frame and on a small-scale basis. Sofia Ranchordás presents a thorough analysis of sunset clauses and experimental legislation from a comparative perspective, and offers a clear legal framework for their implementation.

Chapter 6: The principle of proportionality

Sofia Ranchordás

Subjects: law - academic, comparative law, constitutional and administrative law, politics and public policy, public policy


Both sunset clauses and experimental legislation break with the traditional paradigm of permanent legislation. Breaking with tradition does not need to be regarded as a ‘bad thing’. As Justice Holmes stated: ‘the past gives our vocabulary and fixes the limits of our imagination … continuity with the past is not a duty. It is only a necessity’. This ‘vocabulary’ may be used to assist judges in assessing whether legislative choices have been reasonable, but it should be complemented by an active search of facts. Instead, in light of the lack of information and rapid technological and social developments, it might not even be reasonable to regulate a situation ‘forever’. Instead, sunset clauses and experimental legislation may be a proportionate choice, particularly as far as the limitation of freedom and property of citizens is concerned. Sunset clauses and experimental regulations will not always limit fundamental rights, but the choice to do so on a temporary and/or an experimental basis should pass a proportionality inquiry. The importance of performing a proportionality assessment responds to the Dutch Council of State’s argument that experimental legislation should be regarded as a ‘last resort mechanism’.

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