Wangenheim, Georg von --- "Production of Legal Rules by Agencies and Bureaucracies" [2011] ELECD 1063; in Parisi, Francesco (ed), "Production of Legal Rules" (Edward Elgar Publishing, 2011)

Book Title: Production of Legal Rules

Editor(s): Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440326

Section: Chapter 5

Section Title: Production of Legal Rules by Agencies and Bureaucracies

Author(s): Wangenheim, Georg von

Number of pages: 29

Extract:

5 Production of legal rules by agencies and
bureaucracies
Georg von Wangenheim*



1. Introduction
The central question posed in the literature on the production of rules by
agencies is how the discretion of law-making agencies can be curbed. The
political preferences of bureaucracies are most often taken to be exogenously
given. These may be the personal political preferences of the director of a
single agency or may reflect the influence of interest groups. The influence
of interest groups on rule-making agencies has been studied in a descriptive
way by Furlong (1997) and Furlong and Kerwin (2005), but is rarely modeled
explicitly in this literature. Based on more or less complete answers to the central
question, explanations are given for why a legislator may want to delegate
law-making power to bureaucracies and how control of this delegated power
is to be organized. The key normative question is how much delegation there
ought to be. However, answers given to this question barely rely on the positive
analyses mentioned herein.
Current positive law-and-economics analyses of how agencies and
bureaucracies (the terms are used as synonyms here) produce legal rules
differ substantially from approaches applied to other law-making institutions.
These analyses do not follow the Public Choice approach commonly used
to explain the production of legal rules by legislators, nor do they follow the
evolutionary approaches mostly used to explain production of rules by the court
system. Theories dealing with bureaucratic law-making do not therefore derive
one ...