The Coproduction of Primary and Secondary Legislation: Israel as a Case Study of Substitutive Relationships

• Author: David Levi‐Faur,Nir Kosti
• DOI: http://doi.org/10.1111/lapo.12138
• Published date: 01 October 2019
• Date: 01 October 2019

The Coproduction of Primary and Secondary

Legislation: Israel as a Case Study of Substitutive

Relationships

NIR KOSTI and DAVID LEVI-FAUR

Much has been written since the early 1980s about the costs of regulation and the various ways

to curb them, but thus far no one has examined empirically the rise or decline of other forms of

legislation, mainly primary legislation, in the context of the “war on regulation.” This article

examines the extent to which the decline in the rate of production of secondary legislation in

Israel since 1985 has been driven by changes in the rate of production of primary legislation.

Using an original longitudinal data set, we count, codify various dimensions, and compare the

type and length of primary and secondary legislations and the number of delegated provisions

that primary legislations contain. We find that the relationship between primary and secondary

legislation is not hierarchic, as one might have expected, but has become partially substitutive.

The decline in the rate of production of secondary legislation in Israel is, perhaps paradoxi-

cally, associated with the rise of primary legislation. This opens a new research agenda on the

relationships between primary and secondary legislation that goes well beyond the Israeli case.

The war on regulation is a popular topic among right-wing politicians. Its origins date

back at least to the presidency of Ronald Reagan in the US in the early 1980s. Four

decades later, the antiregulation agenda is still a widely popular issue for right-wing

parties and politicians all over the world (Rabin 1986; Polk et al. 2017; Adam et al.

2019; Norris and Inglehart 2019). US President Donald Trump signed an executive

order in January of 2017 requiring federal agencies to remove two existing regulations

for every new regulation they produce (Lam 2017). Canada, to take another example,

has adopted the Red Tape Reduction Act (2015), which requires regulators to remove

an existing regulation whenever they introduce a new regulation that imposes an admin-

istrative burden on business (Jones 2015). In Israel, Prime Minister Benjamin Netan-

yahu, framing regulation as “excessive” and “hasty,” promoted a cabinet decision in

2014 that called for a 25 percent reduction of government regulations and the bureau-

cracy (Prime Minister’s Office 2015a, 2015b). Though not exhaustive, these examples

demonstrate how the current “war on regulation” has been pursuing aggressive regula-

tory rollback.

This research was supported by the following Israeli Science Foundation Grants: ISF 324/2018, and 1029/2015.

We would like to acknowledge comments and useful suggestions by David M. Driesen, Guy Mor, Hanan

Haber, two anonymous reviewers, and the editors of the journal.

Address correspondence to: Nir Kosti, Hebrew University of Jerusalem—Department of Political Science,

Mount Scopus, Jerusalem 91905, Israel. Telephone: +972 525424395; Email: nir.kosti@mail.huji.ac.il.

LAW & POLICY, Vol. 41, No. 4, October 2019

©2019 The Authors

Law & Policy ©2019 University of Denver and Wiley Periodicals, Inc.

doi: 10.1111/lapo.12138

ISSN 0265-8240

Thus far, however, there has been little discussion about how governments’ regulatory

and legislative instruments vary across national jurisdictions that share similar attitudes

toward liberalization and deregulation. Little is known about how countries differ in

their regulatory production or in the legal instruments that they use to draw up regula-

tions. The usual way to study regulatory outputs until now has been to focus on the

dynamics of regulation and to explore its driving forces (see, for example, Potter and

Shipan 2019). In this article, by contrast, we study the coproduction of primary legisla-

tion (laws made by legislatures) and secondary legislation (laws made by executive or

regulatory agencies, usually known as regulation). By studying how these two types of

legislation are produced and interact with each other, we seek to better understand how

regulation grows and changes over time, and how legislation and regulation coincide

(Voermans 2017).

While it is generally understood that primary and secondary legislation are highly

interrelated, explanations for the growth of primary legislation and for the growth of

secondary legislation have rarely taken each other into account (but see Jakobsen and

Mortensen 2015; Yackee and Yackee 2016; Adam, Knill, and Fernandez-i-Marı

´n 2017).

To the best of our knowledge, no one thus far has empirically studied the question of

how the dynamics of secondary legislation (or regulation) respond to the dynamics of

primary legislation. Previous works in legislative studies have examined how the produc-

tion of primary legislation relates to the functions, performance, and behavior of parlia-

ment (Blondel 1970; Do

¨ring 1995; Tsebelis 1999; Arter 2006). Divided government

literature sees law production, especially the production of “important laws,” as an indi-

cator of institutional gridlock (Mayhew 1991; Howell et al. 2000). The Comparative

Agendas Project (CAP) literature uses primary legislation production mainly as a proxy

for legislative agenda or policy change (Jones and Baumgartner 2005; Bevan and

Jennings 2014). In addition, the rule-making literature largely does not take primary leg-

islation into account in its studies of the determinants and dynamics of secondary legis-

lation (Kerwin and Furlong 1992; Kerwin 2010; Sant’Ambrogio 2011; Lavertu and

Yackee 2014).

To study the coproduction of primary and secondary legislation, we draw on official

reports of rule-making activities (gazettes) in Israel, making it possible, for the first time,

to conduct a quantitative exploration of the relationship between them. The annual pro-

duction of regulations in Israel increased between 1948 and 1984, but since 1985 it has

sharply declined. Shortly after this decline began, the annual production of laws and

amendments to laws started to rise. Hence, we seek to understand to what extent the

decline in the annual production of regulations in Israel since 1985 has been driven by

changes in the production of laws, while also examining alternative hypotheses. The

Israeli case may be exceptional (this remains to be assessed), but the issues around the

dynamics of, relationships between, and functions of primary and secondary legislation

have for far too long been at the margin of the regulation and governance literature.

To clarify, we treat the Israeli case as an exploratory case study in order to open a

research agenda for others; at the same time, we challenge the current tradition of

research where legislative instruments are studied separately. The surprising findings

about the substitutive relationships between primary and secondary legislation in Israel

suggest that cross-national comparisons should also take into account the different

national traditions in the coproduction of primary and secondary legislation. The com-

parative numbers that we show in the next part—from nine additional countries—

illustrate the existence of different relationships between primary and secondary legisla-

tion. However, more research on this topic is required before the association between

primary and secondary legislation can be more clearly understood.

©2019 The Authors

Law & Policy ©2019 University of Denver and Wiley Periodicals, Inc.

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