No. 41




Legal Theory Connections to the Quality of Legislative Drafting in Estonia*

10 June 2020


RiTo No. 41, 2020

Despite the best efforts, legal acts and legal provisions tend to cumulate in legislative drafting in Estonia, and the overall transparency of the legal order often suffers.

It was the historical school of jurisprudence that posited that the dominant concept of legal theory in the society acts as a silent undercurrent that influences the daily choices of the legislator. We should not ask whether the legal theory affects legislation, but how. In light of this thesis, the article explores how legal theory affects the low quality of legislation and the excessive mutability of legal acts, which are generally considered problematic in Estonia.

The article focuses on Estonia’s administrative law because this significantly regulates the relations between the state and the citizens, and in the process also shapes the attitude of the state towards its citizens, and vice versa – the attitude of the citizens towards the state. Since administrative law forms the largest part of the total volume of legislation in Estonia, it is not unreasonable to ask which are the basic theoretical concepts underlying administrative law drafting in Estonia. If legal theory has a role here, which is its main orientation?

In administrative law, the chosen approach does not put the emphasis so much on creating material law provisions originating from the constitutional system (which would ensure the application of the rule of law or legal certainty principles); instead the emphasis is more on resolving practical problems with the help of legal provisions. This orientation is more in line with the legal realism approach whose strength lies undeniably in its inherent openness. However, it is impossible to totally break free of legal positivism. Since Estonia’s Constitution ties administration to legal acts, the ideology behind Estonia’s administrative law is also unavoidably tied to legal positivism to a certain extent.

The triumph of legal realism in the administrative law can simultaneously mean that the legal provisions are geared too much towards individual cases and biased in favour of the departmental interests of the relevant ministries. To summarise the article, the theoretical legislative drafting model in Estonia’s administrative law can be critically assessed in view of reducing the accumulation of excessive and inefficient commands and prohibitions in the legal order (deregulation), and the importance of jurisprudence in the preparation of administrative law drafts and legal provisions can be increased. Increasing the role of jurisprudence could be key to preventing the proliferation of excessive legislative bureaucracy and legislation.

If Estonia’s legislator would simply acknowledge the different legal theory approaches it would already be a step forward in avoiding a methodical and theoretical confusion in legislative drafting. The worst outcome of an ignorance-fuelled legislative merry-go-round would be if the fruits of no legal theory school would make it to the real life. On the one hand, the social and economic methods that are vital for ensuring the quality of legal realism do not work; on the other hand, no value or emphasis is put on the legal dogmatism inherent to legal positivism (legal certainty, terminology, system, logic, etc.). Draft legislation prepared with a legal realist approach but without a thorough methodical preparatory work is arbitrary and, to all intents and purposes, tantamount to resolving an individual case at the level of legal acts. To counter this, the Constitution is a normative legal source oriented at building up an all-encompassing and stable legal system.

* Peer reviewed article