Antonios Kouroutakis* and Sofia Ranchordas**:
Conventional wisdom says that crises are temporary. Hence in turbulent times of war and economic crisis, which require extraordinary and prompt decisions, temporary measures are necessary. It also says that, in this context, sunset clauses might be the best instruments to guarantee that such extraordinary measures do not become entrenched. What conventional wisdom does not say or might not know is that this temporary de-juridification, or the strategic disappearance or suspension of law, which is operationalized by sunset clauses, often outlast such crises. Our article Snoozing Democracy: The Dejuridification of Emergencies analyzes the ambivalent use of sunset clauses as a de-juridification instrument. It provides a historical and comparative account of the implementation of temporary de-juridification through sunset clauses. Based on these lessons, we suggest a normative framework to help rethink particularly the temporary de-juridification of human rights and constitutional protections and address the negativity which is often associated with sunset clauses.
Sunset clauses are legislative dispositions that provide that a specific piece of legislation shall expire automatically on a specific date. Sunset laws have been defined as “statutes under which a governmental agency or program automatically terminates at the end of a fixed period unless it is formally renewed.” Although they are often mentioned in Congressional debate and in literature, they have been rarely studied in depth. The idea underlying the use of these dispositions is to terminate a number of dispositions when they are no longer necessary. However, while the existence of fewer rules could potentially address the frequent criticism to excessive juridification, the strategic disappearance of rules at times of crisis has not proven to be a panacea either. Rather, throughout history, we have observed that sunset clauses have been too hastily employed and very often extended beyond the original critical periods. Not surprisingly, this has left a mark on the principle of separation of powers and the protection of human rights.
Sunset clauses have been typically employed in the context of emergencies as both a juridification and “de-jurification” tool. Although the concept of de-jurification might appear to be relatively new, sunset clauses have been employed for centuries, particularly in common law countries. These legislative instruments may create rules that authorize, for example, temporary financial assistance to firms in distress or de-juridify by suspending certain regulations, guarantees, rights, and procedures in order to accelerate executive decision-making and, hence, accommodate temporary political and social challenges. This is, for example, the case of the suspension of the writ of habeas corpus, which has been at stake in times of crisis for centuries. This form of de-juridification has more recently regained a place in the legal literature due to the possibility to suspend this privilege in case of suspicion of future involvement in acts of terrorism.
The excessive and unjustified renewal of sunset clauses becomes problematic when the “state of emergency” becomes the “state of normalcy,” and the sun never sets on emergency powers. This has been, unfortunately, a common reality in the history of sunset clauses. While ideally, the sun should not set on legislation before an evaluation takes place, sunset clauses seem to have acquired a “bad reputation.” The literature has pointed out that the practice of states with sunset clauses seems to reveal that these temporary legislative measures have often been reauthorized without a meaningful evaluation or have served primarily to “sweeten” opponents in Congress to vote in favor of a controversial law. In addition, since sunset clauses are often renewed without being adequately revisited, temporary de-juridification has become “democracy’s snooze button.” Instead of reacting to the obsolescence of legislation, the adoption of sunset clauses simply postpones decisions regarding extraordinary powers. Therefore, sunset clauses might not always be a shield against the normalization of extraordinary emergency provisions. Our Article aims to reinstate the original mission of sunset clauses in the context of emergencies.
In our article, we suggest a normative framework that relies on three pillars: first, a clear definition of emergency and risks in order to limit the number of circumstances allowing for the temporary de-juridification of rights and constitutional protections. The second element of our framework is the adequate and limited duration of a sunset clause which should guarantee that temporary derogations are in tune with the length of the crisis they aim to tackle. The third element is the focus on political and legislative accountability, which should be put in practice by detailed evaluation criteria and framework. The first element aims to provide for a clear definition of the situations that can and should be de-jurified on a temporary basis. In the case of crisis, a strict definition of the concept of ‘emergency’ and the reasons that justify the temporary suspension of human rights must be provided. This would avoid that emergency powers remain valid after the emergency has ceased to exist. In addition, before deciding to de-jurify and sacrifice human rights, the legislature should investigate whether a certain situation is the result of serious dangers or merely risks. Here, we refer to Luhman’s distinction between risk and danger: risk “refers to the potential future loss as a consequence of a decision (…) and we can speak of risk only if we can identify a decision without which the loss could not have occurred,” whereas danger refers to “the potential loss resulting from something external to the one affected.” Terrorism and natural disasters can be qualified as dangers because they were unexpected, whereas some economic policies (e.g., decision to invest or engage into financial speculation) will easily fall into the category of risks.
After having decided whether or not a social space can and should be de-jurified, law and policymakers should reflect upon the duration period of the sunset clause. This period should coincide with the emergency, i.e., it should be long enough to allow lawmakers to solve effectively a certain social problem and gather information as to its nature, but it should not be disproportionate considering the crisis in question. Depending on the scope of the de-juridification, this period should be as limited as possible to avoid unjustified violations of human rights and the principle of separation of powers. Another important element of temporary de-juridification is retrospective evaluation (or ex post evaluation).
Evaluations should also be an essential element of temporary de-juridification. The necessity of extraordinary measures or de-juridification should be reassessed after a certain period, preferably by an independent evaluation commission, and the transparency of this evaluation should be guaranteed, when possible, by the publication of its results. We acknowledge that in some cases, the publication of information may be however contrary to the safeguard of national security.
Although the de-juridification of social spheres and rights might seem at first sight an attractive alternative to excessive legalization at times of crisis, fewer rules, if uncontrolled, might also result in a reduced protection of human rights and checks and balances. Our article discusses this ambivalence and provides a new perspective on temporary de-juridification. Contrary to conventional wisdom, less is not always more, unless it is not meant to last.
* Antonios Kouroutakis is a postdoctoral fellow at Free University of Berlin with previous experience as a postdoctoral fellow at City University of Hong Kong where he taught Constitutional law and Access to Justice. He obtained a DPhil from University of Oxford (Worcester College) in 2014, and he worked with Professor Paul Craig on the impact of temporary legislation on the separation of powers and the rule of law (forthcoming with Ashgate Publishing). He graduated from Democritus University School of Law in 2004 and took the Athens Bar Exam in 2006. The following academic year he attended the LL.M program at UCLA Law School where he was awarded a Dean’s Tuition Fellowship merit grant. He also practiced in Athens for 2 years specializing in the areas of administrative law and criminal law. His recent publications include ‘Judges and policy making authority in the United States and the European Union’ in Vienna Journal on International Constitutional Law (June 2014), ‘The Provisional Constitution of the Federal Republic of Somalia: Process, Architecture and Perspectives’ in Cambridge Journal of International and Comparative Law (June 2015).
** Sofia Ranchordás, PhD is a Resident Fellow at the Information Society Project at Yale Law School and an Assistant Professor of Administrative Law at Tilburg Law School, in the Netherlands. She has published extensively on temporary legislation, regulatory flexibility, new technologies, and the use of temporary and evidence-based instruments to address disconnects between law and innovation. Her scholarship includes a book on sunset clauses and experimental legislation (“Constitutional Sunsets and Experimental Legislation,” Edward Elgar), the article “Innovation Experimentalism in the Age of Sharing Economy” and “Does Sharing Mean Caring? The Regulation of Innovation in Sharing Economy” in the Minnesota Journal of Law, Science and Technology (2015). Sofia has spoken at multiple conferences and has recently given a TEDx talk on law and innovation.