The Global Revival of Legisprudence:

A Comparative View on Legislation in Legal Education and

Research
Ittai Bar-Siman-Tov*
Abstract: This essay explores the revival of legisprudence as the field within legal
studies that is dedicated to researching and teaching about the theory and practice of
legislation. While arguing that we are witnessing a global revival of legisprudence, the
essay focuses on a cross-Atlantic comparison of the field in the Unites States and in
Europe. It explores the parallels, and differences, in the development of
legisprudence/legislation in the Unites States and in Europe. This exploration
challenges the perception that legisprudence is a new field, and argues that the field has
deep and respectable historical roots, but that it has been largely abandoned for most of
the 20th century. It further examines the reasons for this neglect, as well as the reasons
for the field’s recent revival since the end of the 20 th century. Finally, it explores the
barriers, and potential, for a global cross-national development of the field of
legisprudence.

Keywords: Legislation, legisprudence, legislative studies, science of legislation, legal

education, legal scholarship

Introduction

One of the challenges of writing about legisprudence from a comparative or cross-

national perspective is that the field has traditionally developed separately in each
nation, with little cross-boundaries fertilization (Voermans and Eijlander 1999). Even
a commonly-accepted term to refer to this field does not exist. In the U.S., some
scholars in the past have used the term “legisprudence” (Cohen 1950, 1983); but today
the legal field of studying legislation is usually simply referred to as “legislation” (e.g.,
Eskridge 2003; Eskridge & Frickey 1987; Garrett 1999) or “legislation and statutory
interpretation” (Garrett 2008a). “Legislative studies” is usually used to refer to the
political science field of studying legislatures (e.g., Martin, Saalfeld, and Strøm 2014).
In Europe, even when writing on this legal field in English, a wide array of terms is
employed, such as: legisprudence, legistics, legistique, logistics, legislation studies,
legislative studies, science of legislation, and theory of legislation (e.g., Karpen 2005).
Sometimes, even the same term is given various meanings. For example, the term
“legisprudence” is often used as a general name for the legal field of studying
legislation (e.g., Cohen 1950, 1983; Mader 2001; Karpen 2012; Voermans and
Eijlander 1999), but it is also sometimes used to refer to a particular theory of legislation
(e.g., Wintgens 2006), and sometimes as a term to describe the judicial view or case-
law about legislation (e.g., Gluck 2010).

Associate Professor, Bar-Ilan University Faculty of Law; Founding Co-Chair, The Israeli Association of
Legislation. © 2018, Ittai Bar-Siman-Tov. For helpful comments on previous drafts I thank the
participants of the International Conference on Legisprudence: Conceptions and Misconceptions of
Legislation, at Zaragoza University School of Law, 23/24 February 2018. Many thanks as well to my
dedicated team of research assistants: Daria Chill, Tair Samimi Golan, Yuval Shaki, Avichay Tweeg &
Shani Wiersch.
 2

In this essay, I will attempt to provide a comparative, cross-Atlantic discussion of

the field. I will interchangeably use the main American term “legislation” and main
European term “legisprudence.” I will use them to mean: the field within legal studies
dedicated to researching and teaching about the theory and practice of legislation. This
broad definition is used to capture the observance that this legal field includes a broad
spectrum of scholarship from the highly theoretical philosophical discussions of
legislation1 to the highly practical scholarship, such as scholarship directed at
instructing legislative drafters.2

I will argue that toward the end of the 20th century, and even more so, during the
21st century, we are witnessing a global revival of legisprudence as an area in legal
scholarship and teaching. Part 1 will discuss the story of the revival of
legisprudence/legislation in the US. I will challenge the perception that this is a new
field in legal academia. Instead, I will argue that this field in fact has deep and
respectable historical roots, but that the field has been neglected for at least a century.
I will also argue that the field reemerged at the end of the 20th century and that it is
beginning to blossom during the 21st century. I will explore some of the reasons for the
long neglect of legislation in legal education and research, as well as the reasons for its
recent rebirth. While these reasons would seem to be particularly American, Part 2 will
argue that there are fascinating and surprisingly similar parallels between the
development of legisprudence/legislation in the U.S. and its development in Europe and
other jurisdictions such as Israel. This is particularly interesting given that these
developments have occurred quite separately with little cross-Atlantic influences.
Finally, Part 3 will turn from the past and present of legisprudence to discussing its
future. It will ask whether the field of legisprudence could have a more global future,
with more comparative work and cross-national fertilization.

Before turning to the discussion, a few caveats are in order. First, any argument
about general cross-national trends and comparisons entails inevitable broad
generalizations and over-simplifications. Second, and relatedly, in this brief essay, I, of
course, do not purport to provide a detailed historical study of the development of
legisprudence. Rather, I briefly describe its development in broad strokes. Finally, I
will provide citations to support my claim that the revival of legisprudence is occurring
in many parts of the world and in various types of legal systems. Yet, given limitations
of scope, in this brief essay, I will focus on the jurisdictions I am most familiar with:
the U.S. and its comparison to Europe, with occasional references to other jurisdictions,
such as Israel. I hope that future studies will expand the dialogue to additional
jurisdictions in Asia and in the southern hemisphere (cf. e.g. Alemán 2013; Arter 2006;
Carter 2017; de Paula 2017).

1
Think, for example, of works by Waldron and Wintgens, among others.
2
Think for example of (Karpen 2008), among others.
 3

1. The Revival of Legislation: The American Perspective

Do you like Legislation?

I do not like Legislation. I will not teach it, Jimmy Chen.
…
I will not teach it in the Fall,
I just don't like the course at all!
Look here, Jimmy Chen, now look!
I do not like Phil Frickey's book!
I will not teach in fall or spring,
A full-blown course, or shortened thing!
I will not start the course in March,
The whole darn thing is such a farce!
I will not teach 4 days a week!
That would make the students freak!
I will not teach it here or there!
I will not teach it anywhere!
I do not like Legislation! I do not like it, Jimmy Chen!

This quote is part of a verbatim transcript of an actual faculty meeting about curricular
reform in an American law school (Paulsen 2001). Fortunately, just like the original
children’s book (Seuss 1988), the speaker finally “sees the light” and realizes that s/he
actually loves legislation and would love to teach it. This, in a nutshell, is the story of
legislation in American law schools: from long neglect to revival.

1.1. Legislation as a Long Forgotten Field

Bill Eskridge and Phil Frickey, two of the pioneers of introducing legislation into
legal education, once observed: “Legal academe’s approach to the systematic study of
‘legislation’ resembles Congress’ attitude toward balancing the federal budget:
everyone agrees that it is a good thing, but laments that it is not done” (Eskridge &
Frickey 1987: 691). This quip provides a generally accurate description on the state of
legislation studies in American law schools during most of the 20th century. Indeed, a
recurring theme in the American scholarship since the 1980s is the observation about
legal academia’s systematic neglect of legislatures and legislation (e.g., Cohen 1983;
Fitts 1988; Garrett 1999; Nourse 2012; Posner 1983; Stern 2014; Waldron 1999a;
Waldron 1999b).3 Based on this overwhelming agreement about the long-standing

3
Consider, for example, the following observations, which are just a few representative quotes out of
many others: “The inquiries of jurisprudence… have focused mainly on the judicial side of the legal
order… its counterpart on the legislative side of the legal order has, with notable exceptions, been left to
languish” (Cohen 1983); “For most of our history, the legislative process, unlike the administrative and
judicial processes, has not been the focus of sustained legal scholarship” (Fitts 1988: 1569);
“Notwithstanding the importance of the legislative process to complete, sophisticated legal analysis, the
legal academy focuses very little of its attention on Congress and state legislatures” (Garrett 1999: 679);
“[T]he study of law almost invariably centers on the courts… The study of ‘legisprudence’… is much
neglected” Stern 2014: vi-vii); “There is nothing about legislatures or legislation in modern philosophical
jurisprudence remotely comparable to the discussion of judicial decision-making.” (Waldron 1999a: 1);
“If one asks what analytic jurisprudence has offered… to the judge, lawyer, or law professor interested
in legislation, the answer is embarrassing” (Waldron 1999b: 9); “More than occasionally, law professors
reveal a stunning lack of knowledge about Congress’s rules. This reflects the failure of the standard law
 4

neglect of legislation, one might be tempted to believe that the study of legislation is a
new trend in American legal scholarship and teaching.

Yet, the idea that this is a new field might make several prominent figures
rollover in their graves. Perhaps the best well-known example is Thomas Jefferson.
While most famous as the author of the Declaration of Independence (and the third
President of the United States), Jefferson was also the author of the first American book
on parliamentary procedure (Jefferson 1801). Jefferson based his Manual of
Parliamentary Practice not only on practical experience (as a state legislator and later
as the U.S. Senate’s presiding officer), but also on his academic studies. In fact, we
know that in the early 1760s Jefferson studied parliamentary procedure at the College
of William & Mary (one the two oldest universities in the U.S.). Moreover, as Governor
of Virginia, Jefferson led a reform in the College’s curriculum and created a legal
studies program that included studying not only case-law but also statutes, and practical
legal training that included not only moot court but also a model legislative session
(Dixon 2014). A later prominent example is Jabez Gridley Sutherland, the legislator,
judge and law professor who published the influential treatise on "Statutes and Statutory
Construction" (Sutherland 1891). Indeed, in the specific area of statutory interpretation,
there is a distinguished history of scholarship in the United States, with Sutherland’s
being the most famous example (Danner 1987). Calls for greater scholarly and
curricular attention to legislation in the U.S. are also not as new as one might expect.
There is certainly historical evidence for such calls from the late 19th century and the
first half of the 20th century (e.g., Entrikin and Neumann 2017; Cohen 1947; Landis
1934; Stack 2015), albeit these calls remained largely unheeded (Entrikin and Neumann
2017; Posner 1983; Stack 2015).

Notwithstanding this history, American legal academia largely neglected

legislation (and regulation) throughout most of the 20th century (Stack 2015; Strauss
2016; Rubin 2007; Cohen 1983; Fitts 1988; Posner 1983; Entrikin and Neumann 2017).
Thus, it would be inaccurate to say that legisprudence is a new field or that the
emergence of legislation into legal scholarship and teaching is an entirely new trend.
Rather, it is more accurate to say that legisprudence has deep and distinguished roots in
the U.S., but that it has long been a forgotten and neglected field.

This raises the question of why was legislation neglected for so long in
American law schools. An examination of American scholarship yields various
explanations, and there are differences of opinion on some factors.4 Yet, I think that

school curriculum, with its courses on civil procedure, criminal procedure, and administrative procedure,
but none on legislative procedure” (Nourse 2012: 72)
4
To give but one example: Some claim that “Hart and Sacks killed legislation for almost a generation
because their now classic materials reflected the nineteenth century's focus on judicial decision making,
rather than the more recent focus on legislative and administrative decision making” (Eskridge 2003: 5);
whereas other argue that Hart and Sacks actually tried to lead an approach that challenges the exclusive
focus on judicial decision making, but that their efforts to direct more attention to legislation failed
(Strauss 2016).
 5

few will disagree with the claim that the “main culprit… has been legal education's self-
perpetuating preoccupation with litigation and case law” (Dickerson 1986: 316). This
exclusive preoccupation with courts and case law, with its resulting neglect of
legislation (and regulation), has several explanations. Some claim that “The explanation
is simple: we are a common law country. Just as European authors find it difficult to fit
case law into a world of statutory codes, so we have trouble fitting statutes into a
common law system” (Popkin 1999: 1). Related explanations turn to features of the
traditional American legal culture that valorized judge-made law as the superior and
real source of Law, while viewing legislation as an inferior source of law, seen more as
a matter of politics than law (Stack 2015; West 2011; Jackson 2016). Additional
explanations include features of American legal teaching that rely on the case-method
(rather than statutes) to study the various subjects of law (Rubin 2007; Strauss 2016).
While the former could be attributed to a broader Anglo-American common-law
tradition, dating back to Blackstone (Eskridge, Frickey & Garrett 2001); the latter is
often “blamed” on the excessive influence of Harvard’s Christopher Columbus
Langdell on American legal education (Rubin 2007; Strauss 2016). At any rate, the
common assumption from these discussions would seem to be that the long neglect of
legislation stems from features that are unique to American, or at least Anglo-
American, legal culture and education. We shall return to this assumption in section 2.

1.2. The Revival and Recent Blossoming of Legislation

While most of the 20th century has been marked by a neglect of legislation in
American law schools, the end of that century has seen the revival of the field, and by
the beginning of the 21st century, we could already describe a blossoming of the field.

The revival of the field in the U.S. occurred around the 1980s. The Association
of American Law Schools (founded in 1900) established a Section on Legislation &
Law of the Political Process in 1985.5 Some scholars (Pildes, 2003; Strauss 2016) mark
the rebirth of the field with the publication of the first edition of Eskridge and Friceky
(1988) influential textbook on legislation (whose sixth edition is currently underway).
By the 1990s, “an avalanche of scholarly and pedagogical materials on legislative
processes and their products has swamped legal education” (Frickey 1996: 469), with
Frickey declaring: “the past decade has probably been the most fruitful in history for
legal academics in the field of legislation” (Frickey 1992).

The revival of legislation in legal education has been no less dramatic. By 2003,
almost 90% of the surveyed American law schools (124 out of the 143 surveyed
schools) offered a legislation course in their curriculum, and about one third (46)
offered more than one legislation courses (Morisey 2003). Since then, offering several

5
The AALS Section on Legislation and Law of the Political Process provides for the development and
sharing of research, teaching methods, and materials in legislation, legislative process, legislative
drafting, the courts-Congress relationship, and interpretation. See
https://memberaccess.aals.org/eWeb/dynamicpage.aspx?webcode=ChpDetail&chp_cst_key=5cdfd3b0-
d888-4365-bb83-3ddd470a5033 (accessed on February 3rd, 2018).
 6

legislation (and regulation) courses have become a staple in the elite American law
schools. As of 2014, Columbia, Harvard, Yale and Georgetown each offered four
courses on the subject; Berkeley offered three; and Stanford, Chicago, NYU, Michigan,
Duke and Cornell each offered two courses (Gluck 2015). An increasing number of
schools also offer courses on legislative drafting (Entrikin and Neumann 2017; Levine
2017). Indeed, in some schools the trend seems to be developing from offering a course
on legislation to offering a program on legislation, which includes both academic
courses and practical clinics on legislation (Rudesill, Walker & Tokaji 2015).

It appears that today there is no longer any disagreement about the need to teach
legislation courses in American law schools (Newton 2012), to the extent that
supporters of studying the judicial process are envying the state of education about
legislation (Shannon 2016). Today, the debate turned to questions such as whether
legislation should be an elective course or a mandatory first-year course (as roughly 40
law schools, including Harvard, NYU and Michigan, have already decided to do)
(Brudney 2015; Leib 2008; Gluck 2015); and whether the basic course should focus
exclusively on legislation or on legislation and regulation (Manning & Stephenson
2015; Gluck 2015).6

To be sure, many legislation scholars and teachers would probably argue that
much more should still be done, and that the picture should not be painted in excessively
bright colors. Yet, I think that few would disagree that we have been witnessing quite
a revival of the study of legislation in American law schools over the past twenty years.

What could explain this great revival? Here as well, an examination of the
scholarship yields various explanations (see e.g., Eskridge 2003; Frickey1996). Yet, I
believe that the major and most fundamental explanation is simply the growing
recognition that legal education is increasingly becoming detached from legal reality
and legal practice. The reality was that primary and secondary legislation have become
the major sources of law, and thus legal practice required greater work with legislation.
In these circumstances, the gap between legal reality and the demands of legal practice,
on the one hand, and legal education’s continued exclusive focus on courts and case-
law on the other, simply became inexcusable (Brudney 2015; Frickey 1999; Stack 2015;
Strauss 2016; Rubin 2007).

Indeed, already at the beginning of the 1980s Guido Calabresi (1982) has
proclaimed “the Age of Statutes,” with his famous and influential observation that “we
have gone from a legal system dominated by the common law, divined by courts, to
one in which statutes, enacted by legislatures, have become the primary source of law.”
Since then, the observation about “the Age of Statutes” in the U.S. has been repeated
by countless scholars.7

6
As well as additional debates about the specifics of the ideal structure and contents of legislation courses
(see, e.g., Briffault, 2003; Garrett 2003; Widiss 2015).
7
In a Hein Online searched I conducted in November 2016, 2,120 articles repeated the term “age of
statutes.”
 7

Yet, one of the fascinating findings is that not only academics, but actually
judges themselves, have been instrumental in promoting this cognizance, as well as its
resulting conclusion that law schools should direct more attention to statutes. Indeed,
one of the great boosts to the field came from Justice Scalia, who in an influential
lecture, turned into a widely-cited book, observed: “We live in an age of legislation,
and most new law is statutory law” and added: “By far the greatest part of what I and
all federal judges do is to interpret the meaning of federal statutes and federal agency
regulations. Thus the subject of statutory interpretation deserves study and attention in
its own right, as the principal business of judges and (hence) lawyers” (Scalia1997).
Scalia was certainly not the first judge to make such statements (Frankfurter 1947;
Posner 1983), nor the last (Collins 2014; Kavanaugh 2016), yet he has probably been
the most influential (Frickey 1999).

Scalia’s statement also includes a hint to another major driving force behind the
revival of legislation in the U.S.: The revival of the legislation field was very much
sparked by a revival of the more specific sub-field of statutory interpretation (Frickey
1999). A neglected field during most of the 20th century, the last two decades of the 20th
century were marked by “an explosion of interest in the field of statutory interpretation”
in the U.S. (Popkin 1999: 1). This explosion of interest was very much propelled by the
rise of influential textualist judges (including Scalia) (Eskridge 1990; Frickey 1999),
which prompted a massive (and seemingly endless) scholarly debate between
supporters of purposivist, intentionalist, and textualist approaches to statutory
interpretation (Jellum 2015; Manning 2010).

In short, by the beginning of the 21st century, the vast majority of American law
schools become aware of the age of legislation (and regulation) in the U.S., and realized
that legal academia should catch-up to this reality. As we shall see in the next section,
while this story appears quite American, parallel developments occurred in Europe and
other parts of the world.

2. Beyond the American Perspective: Challenging American Exceptionalism

The previous section has described the story of legislation in American legal
academia, from distinguished roots to long neglect to revival and even recent
blossoming. This section will argue that this story is not unique to the U.S. It will show
that a surprisingly similar story can be told in other countries as well.

2.1. Legisprudence as a Long Forgotten Field

Observations (and criticisms) about the long neglect of legislation in legal

academia are not unique to the U.S. Very similar observations about “systematic
neglect of legislatures” appear in legal scholarship from a large variety of legal systems
(Bauman & Kahana 2006: 1; and see also, e.g., Bar-Siman-Tov 2016, 2018; He 2014;
Karpen 2005; Sebba, 1995; Wintgens 2006, 2013). Interestingly, in many of these legal
systems (and not only common-law systems) a common explanation for the neglect of
 8

legislation is similar to the main explanation in the U.S.: legal scholarship’s

preoccupation with courts and judges (ibid).

And just like the American experience, this long-time neglect of legislation is
notwithstanding deep and distinguished roots of legisprudence scholarship. While I
have given Thomas Jefferson as a primary example in the U.S., the most well-known
example across the Atlantic is probably Jeremy Bentham. While most famous as a
pioneer of utilitarianism, Bentham has also written extensively on the theory of
legislation, parliamentary procedure and parliamentary reform (e.g., Bentham 1789,
1817, 1843). Bentham, who was “convinced that he possessed ‘genius for legislation’,”
dedicated his entire adult life to the field (Burns 1984:7). And, indeed, he had
“considerable influence” on the reform of Parliament (as well as other institutions)
(Bisson, Roberts & Roberts 2016: 307), and is often credited as “the father of the theory
of legislation” (He 2014: 104-05 n. 1). Yet, Bentham was certainly not alone in this
distinguished history. In fact, Burns (1984:7) observes that “the notion of a ‘science of
legislation’ is widespread, almost commonplace, in late eighteenth-century Europe.”8
Moreover, as Jeremy Waldron (1999a) has shown, legisprudence has even deeper roots
in legal philosophy, dating back to Aristotle.

Interestingly, a very similar narrative could be said of legisprudence in Israel

(albeit in much shorter timeframes). Gad (Guido) Tedeschi, one of the fathers of legal
education in Israel, can also be seen as the father of legisprudence in Israel (Sebba,
1995). Yet, his call to teach and research legislation remained unheeded for many
decades, until very recently (Sebba, 1995; Bar-Siman-Tov 2018).

In the previous section I argued that rather than seeing legislation as an entirely
new field in the U.S., given its distinguished (albeit forgotten) roots, it can more
accurately be described as a recently revived field. Interestingly, European scholars
reached the exact same cognizance about legisprudence (Wintgens and Oliver-Lalana
2013):

“Theoretical reflection on legislation is certainly an old concern for

jurisprudence and political science: in a sense, the spirit of
legisprudence may be traced back long ago in the history of legal and
political thinking... If legisprudence is claimed to be a new approach,
it is because that spirit has only recently been reshaped and updated
in order to recover a dedicated space to study legislation within the
field of legal philosophy and legal theory.”
Indeed, some European scholars have described legisprudence as the “sleeping beauty”
(Karpen 2012: 150). Similar observations were made by non-European legisprudence
scholars as well (He 2014; Bar-Siman-Tov 2018).

8
I thank Francesco Ferraro for drawing my attention to this source.
 9

In short, we see fascinating similarities, across different types of legal systems,

in the history of legisprudence from distinguished roots to long neglect. This parallel
between the history and neglect of legislation in the U.S. and in countries that do not
share its common-law culture of valorizing case-law while vilifying legislation, nor its
Langdell’s case-method tradition, is striking. This raises questions for future
exploration about what could be other explanations for this similar neglect of legislation
for so long.9

2.2. The Global Revival and Recent Blossom of Legisprudence

In section 1.2, I described the revival of legislation in American law schools

toward the end of the 20th century and its blossoming in the beginning of the 21st
century. A very similar picture, with only a slightly different timeframe, can be seen in
Europe.

The Swiss Peter Noll (1973) is often credited as reawakening the field of
legisprudence, at least in the German speaking countries (Mader 2001; Karpen 2012;
Uhlmann 2011), and similar revival began in other European countries in the last two
decades of the 20th century (Voermans & Eijlander 1999; Karpen 2005; Karpen 2012;
Karpen & Xanthaki, 2017).10

Since the beginning of the 21st century, this revival has turned into burgeoning
interest in legisprudence. As Wintgens and Oliver-Lalana (2013: v) observed: “Over
the last 15 years, [the] attempt to refund the theory of legislation has been followed by
a wealth of what might be called legisprudential research. This demonstrates that this
theory is gaining as much significance as it had in past centuries.”

While the Western European countries may have been pioneers in the revival of
legisprudence, in more recent years, we see an emerging revival of the field in many
additional jurisdictions around the world (e.g., Bar-Siman-Tov 2016, 2018; Carrillo &
Cordeiro 2016; Carter 2017; Chang 2013; Drinóczi 2015; Gac 2015; Goetz & Zubek
2005; He 2014; Khusainov, Khabibulina & Valiullin 2016; Khusainova, Valiullin, &
Fomicheva 2016; Mańko 2012; de Paula 2016; de Paula 2017; Sotomayor Trelles n.d.).

The global revival and recent blossoming of legisprudence can also be seen in
the founding of the European Association of Legislation and its evolvement into the
International Association of Legislation,11 and in the establishment of countless other
international and national associations dedicated to promoting the study and research

9
One interesting explanation, suggested by my European colleagues at our International Legisprudence
Workshop on Conceptions and Misconceptions of Legislation at Zaragoza University, is that as the wave
of codification in Europe ended and as a generally-accepted approach to statutory interpretation was
accepted, the academic interest in legisprudence waned.
10
To be sure, I do not suggest that growth of legisprudence has been the same in all these European
countries or that the trend has always been linear. For example, Oliver-Lalana and Meßerschmidt (2016)
argue that the academic debate on legisprudence in Germany has been characterized by fluctuations in
activity and popularity and is generally not as developed as in other European countries.
11
“The raison d’être of the IAL is to promote science, research, teaching and the practical application of
rules and good practice in legislation field.” http://www.ial-online.org/about/legislation-at-heart/
 10

of legislation and to improving lawmaking (for a list of several of these organizations

see Bar-Siman-Tov 2015; Beetham 2006). It is also evidenced by the establishment of
many legal journals dedicated specifically to legislation, legisprudence and legislative
drafting;12 as well as political science journals dedicated to legislative studies;13 and of
course, the establishment of the Legisprudence Library, in which this essay will be
published.14

Notwithstanding the revival of legisprudence scholarship, the revival of

legislation education may not have been as extensive everywhere as it was in the U.S.
For example, Uhlmann (2011) reports that in Switzerland most law schools (6 out of
the 9 surveyed schools) offered at least one course specifically dedicated to legislation,
whereas in Germany roughly one-fourth of the law schools offered similar courses.

Yet, the revival of legislation courses in American law school’s curriculum does
have some parallels in countries outside the U.S. Israel, known for the Americanization
of its law schools (Lahav 2009; Sandberg 2010) is perhaps an obvious example. The
leader of this trend has been Bar-Ilan University, which since 2011 established a basic
course in legislation; a legislative process workshop with the Knesset Legal
Department; a legislation clinic with the Counseling and Legislation Unit at the
Ministry of Justice; a large number of courses, seminars, workshops and clinics on
regulation; a dual law-political science degree program on governance and public
policy; a graduate program in environmental regulation; and a doctoral program in
regulation and public policy. The former Dean of Bar-Ilan’s law school highlighted the
development of this extensive legislation-regulation program as one of his major
agendas (Weiler 2014). Similarly, the Dean of Tel-Aviv University’s law school
highlighted the introduction of a first year legislation-regulation course as one of the
most important and innovative cornerstones of the Faculty’s curriculum reform in 2015
(Maanit 2015). Today, many other Israeli law schools also offer at least one course on
legislation, and some (such as Sapir Academic College) also have clinics on legislation.

Interestingly, the stated reasons for this significant curricular change in Israel
are the same as in the U.S.: the realization that legislation and regulation constitute the
major sources of law and that legal education cannot continue to focus exclusively on
teaching case-law (Bar-Siman-Tov 2018). Some law schools also explicitly stated that
they were inspired by the curricular reforms in American law schools, such as Harvard
(Maanit 2015). It is also interesting to note that, similarly to the U.S., judges also played
a role in promoting the cognizance of the need to teach legisprudence. Indeed, the most
influential Israeli judge of our generation, Chief-Justice Aharon Barak stated in an

12
E.g., The Theory and Practice of Legislation (formerly Legisprudence); The Journal of Legislation;
Harvard Journal on Legislation; New York University Journal of Legislation and Public Policy; Statute
Law Review; Legislation and Policy Brief; Journal of Parliamentary and Political Law; Seton Hall
Legislative Journal; LKRI Journal of Law and Legislation; The International Journal of Legislative
Drafting and Law Reform; Hukim – Journal on Legislation; Zeitschrift für. Gesetzgebung [Journal for
Legislation]; LeGes – Gesetzgebung & Evaluation [Legislation & Evaluation].
13
E.g., Journal of Legislative Studies; Legislative Studies Quarterly; Parliamentary Affairs.
14
Springer’s Legisprudence Library.
 11

interview to the Israeli bar journal: "With regard to legal education, we know and
criticize the jurisprudence, and that's fine, but very little is done about the theory of
legislation. I think it's time, I'm talking about the various law faculties, to teach the
theory of legislation" (Dror 2011: 34). On the other hand, unlike the U.S., I do not think
that the revival of legisprudence in Israel (or in continental Europe) was propelled by a
sudden revival of interest in statutory interpretation.

This raises an interesting question: In common-law countries like the U.S. (and
mixed-systems such as Israel), the revival of legislation/legisprudence can be linked to
growing cognizance of the central role of legislation in the legal system (and for legal
practice). Yet, what could be the impetus for the field’s revival in civil-law countries,
where the realization that legislation is the primary source of law is nothing new? It
appears that in such systems, a major driving force was the growth in the number of
laws, and growing criticisms of the quality of legislation (Karpen 2005, 2012; Uhlmann
2011). Hence, legisprudence in Europe grew to a large extent as an effort to improve
the quality (and sometimes also to reduce the quantity) of legislation (Karpen 2005,
2012; Uhlmann 2011). It was prompted, moreover, not only by academics, but also by
governments, international organizations (such as the EU and the OECD) and NGOs
promoting better lawmaking and better regulation programs (Uhlmann 2011).

To be sure, as I said about the U.S., European legisprudence scholars also

caution from painting an excessively rosy picture and argue that there is still much to
do (Uhlmann 2011). Yet, I think we already have sufficient evidence to conclude that
we are indeed witnessing a global revival of legisprudence. We see, moreover, that this
revival has interesting cross-national parallels: in many different jurisdictions and
various types of legal systems, we see a similar story about legislation in legal
academia, from distinguished roots, to long neglect, to revival, to a recent flourishing.

3. A Global Future for Legisprudence?

The previous section has shown that the revival of legisprudence is a global
phenomenon. Yet this revival mostly began in each country quite separately. As
Voermans and Eijlander (1999: 49) observed:

“Until recently legislative doctrine and legislative studies in Europe

have been quite nation-oriented: different countries developed their
own foci and doctrines in the field of legislative studies. In a lot of
European countries the emancipation of legislative studies, as a
distinct discipline with an independent Status, which differs in nature
from traditional legal studies, has only quite recently brought about.
The tradition of sharing and exchanging legislative research results
has only very recently set in.”
In more recent years, there have been important efforts in closing this gap in
legisprudence scholarship and in developing more comparative legisprudence,
particularly within Europe (e.g., Carter 2017; Karpen 2012; Karpen & Xanthaki,
 12

2017).15 Interestingly, these comparative cross-fertilization efforts are not limited to

legislation theory, but are also apparent in legislative practice, with countries copying
“better lawmaking” programs and tools developed in other policy systems (Bar-Siman-
Tov 2015; Popelier 2015). Unfortunately, with honorable exceptions (e.g., Rose-
Ackerman, Egidy & Fowkes 2015), these important developments in comparative
legisprudence have largely been limited to countries within Europe (Carter 2017).

American legislation scholarship has been mostly inward looking. In fact, it has
traditionally focused only on the U.S. Congress, while neglecting not only foreign
legislatures, but even American state legislatures (Briffault 2003). It appears that
American legislation scholars rarely engage with foreign legisprudence scholarship.
For present purposes, suffice it to present one recent example, which I find particularly
telling. In a forthcoming article in the Harvard Journal on Legislation, Ed Rubin
describes “a complete absence of scholarly discussion about ways that Congress can
function more effectively” and about “quality of statutory enactments, that is, their
ability to achieve their desired purpose” (Rubin 2018). He writes:

“[W]e have no theory, and a very limited academic discourse, about

the best way to design statutes. Worse still, even suggesting that this
topic should be the subject of academic discussion violates a norm of
modern scholarship.… [F]ew scholars [in law or any other
discipline], address… normative arguments to legislatures, about the
way to draft effective statutes.… [T]he academic community has
largely ignored the effort to improve the way that the most important
decisions in our legal system are made.”
These statements about the complete lack of scholarship about quality of legislation,
improving the effectiveness of legislation, and ways to draft effective statutes will
probably leave European scholars befuddled if not dumbstruck. In the past twenty
years, so much of the legisprudence scholarship in Europe (and elsewhere) has been
dedicated to precisely these topics (some examples, out of many others include, Aitken
2013; Drinóczi 2015, 2017; Flückiger 2009, 2010; Karpen 2016; Mader & de Almeida
2011; Mousmouti 2012; Muylle 2003; Samuels 2013; Voermans 2009; Xanthaki 2001,
2011, 2014). So much so, that European scholars have assumed that quality of
legislation has become an international buzzword (Mańko 2012; Voermans 2009). The
point of this example is not to criticize Prof. Rubin, who I greatly respect, but to
illustrate that even some of the most serious and distinguished American scholars are
often unaware of the legisprudence scholarship outside the U.S.

The dearth of American engagement with foreign legisprudence scholarship is

also evident from the sacristy of citations to this scholarship in American law reviews.
According to data I retrieved on April 19th, 2018 from Washington & Lee’s journal
rankings, the most cited non-American legislation journal (The Theory and Practice of

15
Similar efforts are evident in legislative studies in political science (e.g., Arter 2006; Martin, Saalfeld,
and Strøm 2014) and in regulation studies (e.g., Bignami 2016; Levi-Faur 2004).
 13

Legislation) received a mere 17 citations in American journals between 2009-2016,

whereas the most cited American legislation journal (the Harvard Journal on
Legislation) received 942 citations in American law reviews.16 In comparison,
according to CiteScore metrics from Scopus, which covers much more non-American
journals, these two legislation journals had almost identical CiteScore metrics.17

Part of the explanation for this lack of American engagement with foreign
legisprudence scholarship may be cultural. That is, this may simply be one more
example of the larger tendency of the American legal culture to generally refrain from
engaging with comparative law. As Barak-Erez (2006: 539) argued in describing the
related phenomenon of American legislators’ tendency to eschew comparative law:

“The United States can generally be described as an almost “export

only” legal-political culture. Generally, bills drafted in the United
States are not based on outside models or, at least, they do not usually
rely on such knowledge deliberately. This pattern is related to a
general trend prevalent in the American legal realm to refrain from
reliance on comparative law, including in academia and in the courts.
The American Supreme Court is famous for seldom, if ever, using
comparative law, and the same trend is dominant in the drafting of
new legislation.”
Yet, the dearth of American engagement with foreign legisprudence scholarship
can perhaps be explained by differences in substantive interest areas between American
and European legisprudence. As I mentioned in part 1.2, the American revival of
legislation in legal academia was largely sparked by renewed controversies about
statutory interpretation methods. Consequently, until relatively recently, American
legislation scholarship (and teaching) has largely focused on statutory interpretation,
while dedicating less attention to other important subjects in the field, such as the
legislative process itself and legislative procedure (Briffault 2003; Garrett 1999;
Vermeule 2004; Widiss 2015), legislative methodology and design (Rubin 2018) or to
empirical work on how Congress operated in practice (Garrett 2008a).

In contrast (as mentioned in part 2.2), the revival of legisprudence in Europe

was not ignited by a sudden revival of interest in statutory interpretation, but rather by
a growing agenda of improving the quality of legislation. It is therefore not surprising
that European legisprudence has not focused so much on statutory interpretation, and
has emphasized other areas (or sub-fields) within legisprudence. When Noll (1973)
revived the field, he highlighted a division between two major subfields: (i) legislative

16
Washington & Lee’s journal rankings count citations to documents in Westlaw's JLR database, which
are primarily U.S. articles. Therefore, it provides a relatively accurate indication about the extent that
journals are cited in American law reviews. See http://lawlib.wlu.edu/LJ/method.asp.
17
According to data I retrieved on April 19th, 2018, these two journals had the exact same Citescore,
Citescore percentile, and Citescore rank; with The Theory and Practice of Legislation having a slightly
larger number of citations, but a slightly lower percentage of articles cited out of the number of articles
published. See https://journalmetrics.scopus.com/.
 14

process, dealing with questions of process and methods when enacting legislation; and
(ii) legislative drafting (Uhlmann 2011). By 2001, Mader reported: “Within
legisprudence various particular areas of interest may be distinguished: (i) legislative
methodology…; (ii) legislative technique…; (iii) legislative drafting…; (iv) legislative
communication [and publication]…; (v) legislative procedure [and legislative
process]…; (vi) the management of legislative projects…; (vii) the sociology of
legislation…; (viii) the theory of legislation” (2001: 119-120). Since then, a rich array
of sub-fields within legisprudence developed, with different scholars suggesting
somewhat different typologies of these sub-fields (e.g., Karpen 2005, 2012; Uhlmann
2011; Karpen and Xanthaki’s 2017; Bar-Siman-Tov 2018). At any rate, the relevant
point is that it appears that at least in the first decade of their revival, American
legisprudence and European legisprudence have tended to generally focus on other
subject matters.

Fortunately, in recent years, this gap in research interests is diminishing. We

see, for example, growing American attention to congressional procedure, legislative
rules and the legislative process (e.g., Bar-Siman-Tov 2010; Bruhl 2003; Garrett 2005,
2008b; Vermeule 2004, 2007; Widiss 2015), as well as legislative methodology, design
and drafting (Entrikin and Neumann 2017; Levine 2017; Seidman and Seidman 2009;
Rubin 2018). Moreover, the recent “empirical turn of legisprudence” observed by
European scholars (Ismer and Meßerschmidt 2016; see also, e.g. Popelier and De
Jaegere 2016) is also evidenced in the U.S. legislation scholarship (e.g., Gluck &
Schultz Bressman 2013; Gluck & Schultz Bressman 2014; Nourse & Schacter 2002).
Hence, there is growing potential, and greater need, for cross-Atlantic fertilization in
legisprudence.

Finally, there may be additional, more technical reasons for the insufficient
American engagement with foreign legisprudence scholarship. For example, to the best
of my knowledge, most American legal students, and therefore most research assistants
employed by American scholars, use Westlaw and Lexis as their primary, if not
exclusive, search engines. Yet, many of the leading non-American legisprudence
publications are simply not available in these two search engines. Part of the solution
is simply alerting the attention of legislation scholars (and their research assistants) to
the need to employ additional search engines (such as Google Scholar). Yet, part of the
solution should come from these non-American legisprudence journals that are not only
absent from some of the major and most widely-used legal search engines, but also
impose quite rigid barriers on the free accessibility of their content. This point might
seem technical, but I believe this is certainly an impediment to the development of a
free and robust global legisprudence dialogue (as well as harming these journals’
impact).

In short, there is still much work to be done to promote a comparative dialogue

about legisprudence that transcends the emerging cross-national dialogue within the EU
and its member states. And, of course, greater American-European engagement is just
one example of where more dialogue is required. To reach a real global dialogue on
 15

legisprudence, particular emphasis should be given to jurisdictions outside North

America and Europe.18

4. Conclusion

This essay has argued that we are witnessing a global revival of legisprudence as
an area in legal scholarship and teaching. It has explored the parallels, and differences,
in the development of legisprudence in the U.S. and Europe. Yet, it showed that despite
the similarities, American legisprudence and European legisprudence have developed
quite separately, with insufficient cross-fertilization.

After a century of neglect, the 21st century is the century of legisprudence. The
blossoming of the field is apparent in various parts of the world. It is now time to
facilitate a global comparative dialogue on legisprudence. Hopefully, this essay will be
a first step.

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