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Does Necessity Know No Law? On the Relative Significance of Legal Quality for Governmental Action

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Abstract:

This article focuses on the issue of what government lawyers should do if they are confronted with a policy that appears to be at odds with the law. The question is whether the perception of a conflict between the law and politics in cases like these turns on a difference of experience or of view. Apparently the latter is the case: broadly speaking there are two pervasive views regarding the role of government lawyers. Many lawyers regard themselves as standing on the side of the law, which has to be upheld in spite of policy-based wishes: law is an autonomous, non-negotiable matter. Many other lawyers see themselves also as policy-making officials who are interested in the social effects of legislation: they view the law as embedded in policy considerations. After a critical appraisal of the advantages and disadvantages of both positions, the conclusion is that the law is only applied if politics are not involved. Whatever the point of view of the government lawyers who are doing their best to uphold legal quality, politics win out at the end of the day.

Keywords: AUTONOMOUS MODEL; EMBEDDED MODEL; GOVERNMENT LAWYERS; LAW-MAKING; LEGAL THEORY; POLITICS

Document Type: Research Article

Publication date: January 1, 2008

More about this publication?
  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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