When Experts Create Law: Deference, Opacity, Legitimacy

Abstract

The article focuses on the deference paid to experts by legislators and judges, highlighting a phenomenon hitherto not considered in the literature. I call this phenomenon “opacity of law”. In particular, the article distinguishes the opacity of legal provisions from the opacity of legal norms. A provision is opaque if it contains technical terms or expressions, incorporated into the text on the instructions of experts, that escape the understanding of the legislators. A norm is opaque, on the other hand, if its content is implicitly fixed by some experts in fact-finding, although that content is not understood by the judge who is called upon to apply the norm. When legal provisions or norms become opaque, epistemic deference to experts turns into semantic deference, and experts create new law in the sense that they determine the content of authoritative legal texts. Starting with two examples from case law, the article analyses the origin of this phenomenon, and its pernicious effects.