When Experts Made the Law: Deference, Opacity and Legitimacy

Abstract

The article focuses attention 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 authoritative texts such as constitu- tional provisions, statutes or regulations, from the opacity of legal norms expressing the content of these texts. An authoritative text is opaque if it contains technical terms or expressions, incorporated into it on the instructions of experts, that escape the understanding of the members of the legislative body. A legal 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 authoritative texts or legal 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 texts. Starting with two examples from case law, the article analyses the origin of this phenomenon, and its pernicious effects.