Understanding the Global Regulatory Process
Edited by Francesca Bignami and David Zaring
Chapter 14: The troubling conjunction of public and private law
Throughout the world, official legal texts commonly take one of four forms that can be represented in the following way: Foundational document(s) Enactments by a representative legislature Executive regulation (subsidiary legislation) Guidance documents concerning regulatory compliance Foundational document(s)—that is, a singular constitution or, as in the European Union (EU), increasingly elaborate treaties—are unique in the legal order. They support and establish its most basic institutions and procedures; they are verbally general and compact, adopted by particularly demanding procedures, and difficult of amendment. Legislation, in the western democracies, is produced in moderate volume by elected representative bodies, such as parliaments or the American Congress. Legislation creating regulatory regimes commonly sets the general aims to be achieved, but leaves the determination of particulars to elements of executive government—to departments and public agencies in the United States, to ministries and public agencies in parliamentary systems. Executive regulations, the secondary or subsidiary legislation agencies produce under legislative authority and in considerably greater volume, are documents that, if valid, also have the effect of statutes. As in the United States, these regulations may be the product of public, participatory procedures; or they may, as elsewhere, be more informally produced. In either event, two characteristics are common—there may be a question whether the legislation has adequately instructed the secondary legislator (the “delegation” problem); and the secondary legislation, once adopted, will be published and available in the same manner as is all public law in the jurisdiction.
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