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Outsourcing the Law

A Philosophical Perspective on Regulation

Pauline Westerman

Not only can services such as cleaning and catering be outsourced, but also governmental tasks such as making, applying and enforcing the law. Outsourcing the law is usually recommended for its cost-efficiency, flexibility, higher rates of compliance and its promise of deregulation. However, lawmaking is not the same as cleaning and rules are more than just tools to achieve aims. In this timely book, Pauline Westerman analyses this outsourcing from a philosophical perspective.
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Chapter 6: The limited role of the judiciary

Pauline Westerman

Extract

Chapter 6 focuses on the effects of outsourced law on judicial interpretation and decision-making. It is argued that since the rules directly prescribe (abstract or concrete) aims, there is little room for judicial construction of underlying justificatory aims. Moreover, as is illustrated by a couple of cases, the room for manoeuvre for the judiciary tends to be reduced in the face of the many new rule-making bodies that are given discretionary powers on the basis of their specific expertise. Parties who are directly affected by malperformance of Principals or Agents are only involved as ‘third parties’. The chapter concludes with some remarks on the precarious position of the judiciary in relation to the many competing law-making and law-applying bodies that are created.

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