We live in an age where legislation and regulation make an increasing impact on our lives. The expansion of legislative and regulatory activities and outputs in the last century and especially in the last four decades has been followed by a growth of scholarly interest. However, far too little attention has been paid to the conceptual and empirical exploration of the relationships between legislation and regulation, and especially to the democratic consequences of their co-evolution, substitutivity, and intersection. This essay provides an introduction to the special issue on legislation and regulation. After introducing the topic, it presents three analytical distinctions between legislation and regulation and introduces the contributions to the issue.
Much has been written since the early 1980s about the costs of regulation and the various ways to curb them, but thus far no one has examined empirically the rise or decline of other forms of legislation, mainly primary legislation, in the context of the “war on regulation.” This article examines the extent to which the decline in the rate of production of secondary legislation in Israel since 1985 has been driven by changes in the rate of production of primary legislation. Using an original longitudinal data set, we count, codify various dimensions, and compare the type and length of primary and secondary legislations and the number of delegated provisions that primary legislations contain. We find that the relationship between primary and secondary legislation is not hierarchic, as one might have expected, but has become partially substitutive. The decline in the rate of production of secondary legislation in Israel is, perhaps paradoxically, associated with the rise of primary legislation. This opens a new research agenda on the relationships between primary and secondary legislation that goes well beyond the Israeli case.
Regulatory discretion is a central concept in the study of the regulatory state. Yet little attention has been paid to the origins of regulatory discretion, and how it varies across polities, policy areas, and over time. This paper presents a conceptualization of regulatory discretion that draws on three dimensions: delegation, content, and procedure. It argues that to measure regulatory discretion in legislation, we need to identify provisions that delegate regulatory powers to governments and then examine the extent to which exercising regulatory powers is constrained. Using Natural Language Processing techniques, this paper presents descriptive findings of the dynamics of regulatory discretion in the United Kingdom between 1900 and 2020. The findings portray how discretion has been constrained and formalized over the years through the content of regulations, while it has still retained high levels of flexibility in exercising regulatory powers. In doing so, the findings illustrate the rise of the British regulatory state through its legislative language.
The study and provision of welfare have long been synonymous with direct social spending. The provision of welfare through-regulatory-means poses a complementary perspective to the study of social policy. In this context, this paper focuses on policies aimed at preventing mortgage borrowers' eviction and repossession in Singapore, a world leader in state-led owner occupancy but a welfare laggard in terms of social spending. The findings show a disparity between a high rate of arrears on housing credit, and a low level of eviction and repossession. We test several explanations for this disparity, and argue that it is the result of policy aiming to minimize eviction and repossessions. This policy is driven by institutional interdependencies within the state, which have tied citizens' housing credit to other aspects of their individual welfare savings. The findings shed light on the central role of regulation in welfare.
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