By Miklós Sebők and Rebeka Kiss.
Is it possible to conceptualise the quality of legislation in a multidimensional manner? If yes, how can we define the laws which are of the lowest quality? This blog examines these conceptual and methodological issues by introducing a theory of legislative basket cases and offering illustrative case studies from Central-Eastern Europe.
How can we conceptualise legislative quality in a multidimensional manner?
One way to start the conceptualisation of legislative quality is to look at some examples which are universally (regardless of party affiliation) considered to be “bad” laws. An example, which we described in more detail in Sebők, Kiss and Kovács, 2023, that highlights the potential failures of the legislative process is the famous case of the ‘Bridge to Nowhere’ in Alaska. The ‘Bridge to Nowhere’ narrative commenced in 1996 when municipal authorities in the city of Ketchikan endorsed a proposal to construct a bridge. This proposed infrastructure aimed to connect the sparsely populated Gravina Island to the Alaskan mainland. The justification for this bridge was vigorously debated, especially since a functional and inexpensive ferry service was already in place. Despite the availability of this service, the bridge project secured initial federal backing under the ‘Transportation Equity Act of 1998’.
Eventually, the Gravina bridge became a notorious example of wasteful expenditure and dysfunctional legislation, particularly after a dramatic U-turn by Sarah Palin, who was campaigning for the governorship of Alaska at the time. Palin had initially displayed support for the project, only to pivot post-election as governor and ultimately dismissing the bridge in 2007 as an impractical solution. Extant scholarship often correlates such poor legislative practices with authoritarian and illiberal regimes. The case of the ‘Bridge to Nowhere’, however, demonstrates that ‘good’ and ‘bad’ laws are not a regime characteristic as the legislative process leading up to is passage unfolded in one of the longest-standing liberal democracies.
Conceptualising the quality of law-making and legislative basket cases
Although the problem of legislative quality has not generated a unified strand of research in political science and legal studies, various approaches to conceptualisation are available that we can build on:
- Substantive approaches: These examine whether the objectives of the law are clearly stated in the text and whether its stipulations are clear and coherent (Gomes, Barbosa and Figueiredo, 2011; Vanterpool, 2007; Voermans, 2009).
- Impact-based approaches: These investigate the expected or actual consequences of laws, for example, based on efficiency, effectiveness, cost-effectiveness, or stakeholder satisfaction (Gajduschek, 2016; Mousmouti, 2012).
- Formal approaches: These primarily consider procedural aspects (Arter, 2006; Krutz and Lebeau, 2006; Norton, 2001; Vogler, 2012).
- Combinations of different approaches: Most often the quality of legislation is conceived as a combination of some of the abovementioned perspectives (Mousmouti, 2014; Radaelli and De Francesco, 2013; Xanthaki, 2014).
Based on the literature cited, a ‘good’ law can be characterized by a clear, and publicly supported policy objective which was fleshed out in stakeholder consultations. It should be efficient, coherent, transparent, and relatively stable post-adoption. Essentially, a ‘good’ law meets high standards across four key dimensions of legislative quality: (1) public policy; (2) formal–legal–constitutional; (3) procedural; and (4) stability.
Conversely, a legislative basket case signifies a major failure in law-making, marked by various deficiencies compromising its effectiveness and legitimacy. Such laws often miss their public policy goals, have unclear purposes, and may conflict with existing laws and constitutional principles. Their drafting often bypasses essential consultations and is rushed through the legislature without adequate justification, leading to a lack of consensus. Post-enactment, these laws are unstable, requiring frequent amendments. The absence of post-implementation evaluations and a failure to establish necessary enforcement conditions further diminish their effectiveness and enforceability. In essence, a law can be considered to be a legislative basket case if it is flawed across a wide-ranging of indicators of legislative quality.
Building on our previous research, which delves into the concept and measurement of legislative backsliding (Sebők, Kiss and Kovács, 2023), in the manuscript serving as the basis of this blog entry, we aim to identify legislative basket cases by employing a multidimensional framework for assessing legislative quality considering content, public process, legal formalities, and constitutional considerations. We examine the quality criteria listed in Table 1 for each law under consideration.
An empirical case study: The Polish Law on Forests
In our presentation at PSA Parliaments Conference 2023, we examined illustrative cases from the Czech, Hungarian, Polish, and Slovak legislation in detail. Here, we focus on the Polish Law on Forests (Act on Forests of 16 December 2016, known as “Ustawa o lasach”) and evaluate it from the perspective of our theory of legislative quality. This piece of legislation was at the centre of a significant legal controversy due to its provisions allowing land clearing and excessive cutting down of trees, which was claimed by its detractors to be in violation of European Union conservation laws. The initial goals of the law were to enhance the rights of property owners regarding tree and shrub growth, simplify regulations on felling trees, and delegate to local governments the ability to adjust greenery protection levels to their needs. The law aimed to introduce a stable solution under the oversight of the Minister for the Environment, who was expected to ensure environmental balance and prevent selective application of provisions (Radecka, 2018).
However, the law’s implementation led to a scandal involving the Minister of Climate and Environment, who approved a logging plan that sparked widespread criticism. The law’s enforceability was complicated by the fact that the area in question—Białowieża forest—is part of the Natura 2000 network and UNESCO World Heritage sites, which is subject to stringent protection standards. The European Commission consistently and formally called on Poland to avoid extensive logging in the primeval forest, which Poland’s government initially ignored and proceeded with the logging activities.
The law faced challenges regarding its constitutionality and compliance with EU law, whereby the Polish government defended its policies by asserting that national legislation mandated sustainable forest management, implying that its tree-cutting practices were environmentally friendly. However, the Court of Justice of the European Union (CJEU) sided with the European Commission, ruling that Poland’s policy contravened the EU’s nature conservation rules (C-432/21). Notably, this was not the first instance of Poland facing legal action over forest management. In 2018, CJEU had already ruled that Poland should halt tree-cutting in the protected Białowieża forest (C-441/17). Due to a ruling in 2023 (C-432/21), Poland was required to revise its national legislation to align its forest management plans with EU biodiversity conservation laws.
The procedural aspects of the law’s enactment were also criticised, as it was adopted hastily, without sufficient preparation, stakeholder consultation, and proper public deliberation. The parliamentary debate was conducted in a fast-track manner, raising concerns about the law’s rushed adoption and potential violation of EU directives— this was later confirmed by the judgments mentioned above. Overall, the Forest Law ticks most boxes related to poor legislative quality and, therefore, constitutes an example of a legislative basket case.
As we showed in our presentation at PSA Parliaments 2023 this case is not unique, and similar multidimensional deficiencies can be observed in relation to many other laws passed in the Central-Eastern European region. Notable such examples include the Czech taxation of church restitution (Act No. 125/2019 Coll.), the Hungarian Medical Chamber Law (Act I of 2023) or the Slovak Land Acquisition Law (Act No. 140/2014 Coll.). Avenues for future research include developing methods to measure and quantify individual quality criteria in a multilingual research design and to assess the causes and consequences of passing legislative basket cases.
About the authors
Miklós Sebők is a Research Professor at HUN-REN Centre of Social Sciences and poltextLAB (poltextlab.com). He serves as the research director of the Hungarian Comparative Agendas Project, and as principal investigator of the V-SHIFT Momentum research project, funded by the Hungarian Academy of Sciences. His research in legislative studies includes co-authored contributions such as “The Concept and Measurement of Legislative Backsliding” in Parliamentary Affairs, “Measuring legislative stability – A new approach with data from Hungary”, in European Political Science, and “Comparative European legislative research in the age of large-scale computational text analysis: A review article” in International Political Science Review.
Rebeka Kiss is a Junior Research Fellow at the HUN-REN Centre for Social Sciences and a PhD student at the Doctoral School of Public Administration Sciences of the University of Public Service, specialising in legislative studies. Her contributions to the field include co-authored works such as “The Concept and Measurement of Legislative Backsliding” in Parliamentary Affairs and “The Transparency of Constitutional Reasoning: A Text Mining Analysis of the Hungarian Constitutional Court’s Jurisprudence” published in Studia Iuridica Lublinensia. She has participated in various research projects including as the Hungarian Comparative Agendas Project, the V-SHIFT Momentum research project, and the OPTED – Observatory for Political Texts in European Democracies.