State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 1: Introduction
Jonathan Verschuuren In most western societies, the role of the legislature was originally based upon the principle of the separation of powers, as ‘developed’ by Montesquieu in his De l’esprit des lois (Montesquieu  1979), and upon the principle of the rule of law. Elected representatives in parliament adopt the law, the executive applies the law and is limited in its powers by the law, and courts test the executive’s decisions against the law and thus interpret the law. In modern states, the principle of the separation of powers does not fully apply. In particular the role of the executive in the law-making process has changed. As indicated by Türk, modern governments have broad legislative competence, leading to a decrease in the role of parliaments in the adoption of legislation. Modern bureaucratic administrations are better suited to generate the necessary laws, especially in times when state intervention covers many ﬁelds (Türk 2006, p. 8). The theoretical responsibility of the state for everything has resulted in the practical presence of the state in every aspect of life, thus causing a ﬂood of laws (Karpen 1996, p. 55). Today, this is generally seen as one of the major weaknesses of the legislature. There are too many laws, sometimes they contradict each other, or they are inaccessible. In general, legislatures are criticized for the phenomenon of ‘overregulation’ and for producing poor-quality legislation which ignores input from citizens and stiﬂes private initiative. Already since the late 1980s, many countries have adopted...