On the Field of Application of Sociology of Law to Law-making and Impact Assessment (The Experience of Estonia)

Abstract

Law is valid in many, quite different senses and forms, and the content of validity is far from uniform. Because, above all, it is important to emphasise the distinction between the legal and the social validity of law, the paper spotlights the elements of social validity encompassed by the concept of legal validity. Discourse on the object and meaning of the sociology of law remains relevant in its own right today, and the problematic nature of the interface between the sociology of law and the scientific world is evident far beyond European jurisdictions. To illustrate the sociology of law’s capacity to make a relatively independent jurisprudential contribution to solving the problems facing the law in society, the paper examines the case of Estonia. So as to support the drafting of laws that are in tune with social realities, Estonia has established rules for law-making, set out in the relevant normative documents. The authors examine those foundations: to create a socially valid law that corresponds to the idea of law, it is necessary to start by mapping out the requirements of the ‘pre-project phase’, then legitimise them and adhere to them in practice. The key message is that impact assessment has a meaning that covers more than simply drafting one or another piece of legislation; this is a process of gathering evidence of the merits and drawbacks of decision-makers’ (policy) choices, to inform assessing the potential consequences. Clearly articulating and enforcing policy directions is important for stakeholders and society at large, for ensuring the visibility and openness of legislative policy.