Predominantly Symbolic Legislation as a Case of Vicious Legislation
摘要
This article proposes a framework for identifying predominantly symbolic legislation (PSL) as cases of vicious legislation. PSL comprises laws that endure despite lacking both effectiveness and efficacy: they are neither meaningfully complied with nor capable of achieving their stated aims yet are preserved for their expressive or signalling value. Drawing on the aretaic turn in legal theory, we understand “virtue jurisprudence” and “vice jurisprudence” as thick evaluative concepts and situate PSL within an aretaic theory of legisprudence. On this basis, we argue that PSL may be properly assessed as vicious along at least three distinct, though interconnected, dimensions. First, PSL can shape the character of citizens and officials by modelling and normalising vices such as punitive conformism, cynicism and indifference. Secondly, PSL typically exhibits serious deficits in the theoretical virtues of good legislation, including applicability, coherence, evidential fit and fruitfulness. Thirdly, PSL is often produced within epistemically corrupted legislative environments, in which institutionalised epistemic vices distort deliberation and further degrade the quality of lawmaking.