van der Burg, Wibren, The Emerging Interactionist Paradigm and the Ideals of Democracy and Rule of Law (April 4, 2015). Erasmus Working Paper Series on Jurisprudence and Socio-Legal Studies No. 15-01. Available for download at SSRN: http://ssrn.com/abstract=2589808

“In this chapter, I present the theory of interactive legislation in the context of a broader interactionist paradigm. I show how different types of newly emerging legal phenomena fit within the shift towards this paradigm. In addition to interactive legislation, we can mention responsive regulation, communicative legislation, negotiated rule-making, co-regulation, legally conditioned self-regulation, regulatory capitalism, and interactional international law. Law-making becomes a cooperative effort on the part of various stakeholders, of which the state is one, but not necessarily the most important. I compare this emerging interactionist paradigm with the traditional one of instrumentalist legislation. This comparison is helpful not only to understand the broader interactionist paradigm but also the variations between the various types of legal phenomena belonging to it. Interactive legislation is one type of law in this interactionist paradigm. In some fields, the development of legal norms is shifting from a vertical model in which the legislator authoritatively sets standards for society to a more horizontal, interactive process in which various social actors participate, and among them, the legislator has an important role, though not necessarily a central one. Similarly, the implementation, enforcement, and control of legal norms is shifting from a vertical model to a more horizontal, interactive process.
The second part of the chapter discusses whether interactive legislation weakens democracy or the rule of law. I argue that, on the contrary, interactionist law may reinforce both democracy and the rule of law – but only under specific conditions. I formulate four requirements addressing different dimensions as regards how interactive processes may go wrong from a democratic point of view: lack of inclusiveness; lack of openness for relevant arguments and views; domination by vested interests; and uncompromising attitudes by majorities. With regard to the rule of law, I discuss the values of finality and legal certainty. I argue that we should distinguish between doctrinal or epistemic certainty and practical certainty. Interactive legislation is clearly detrimental to doctrinal certainty, but practical certainty may be improved rather than impaired by interactive legislation.”